The second reason that on a practical level, skewing the value of an asset is not simple, relates to the fact that the need for a biased valuation of a property must cooperate with external parties and with the professional committee, which naturally makes it difficult to carry out the valuation bias. It was argued, and this argument was not contradicted, that due to the structure of Ness's proposal in order to skew the value of a particular asset, it would be required to persuade Moody's to bias the data it provides to Ness's model, as well as to persuade the professional committee to skew the value of the asset. Indeed, Ness's parent company has certain business ties with Moody's, and it is true that the professional committee operates under the shadow of Ness and its members are appointed by Ness. Still, the need to involve these entities in a process of valuation bias makes it difficult to carry out such a move. In this context, I would like to note that it is possible to strengthen the power of the professional committee and the control of its activities, by publicly publishing its decisions. I made a comment in this vein in the course of the hearing of the petition, and in my opinion, the respondent would do well to consider the matter in the affirmative. In any case, in any event, the decisions of the professional committee are open to the Respondent's review.
- Interim Summary
Thus, the starting points for our discussion were the prohibition regarding being in a state of fear of a conflict of interest; the fact that there is a concern about a miracle that there is a conflict of interest; and the authority of the tenders committee, both according to the case law and in accordance with the provisions of the tender, to legalize a miracle proposal insofar as it believes that the conflict of interest is not material. Further down the road, it became clear that in the circumstances of the case, the conflict of interest is not powerful in terms of its essence, that the fear of its realization in practice is low, and that there are effective ways to deal with it. All of these lead to the conclusion that there is no reason to intervene in the decision of the tenders committee.
- Additional Considerations
To all of the above, we must also add the fact that the Tenders Committee's decision was made under the conditions of a limited and limited market, which in practice includes only the Petitioner and Ness. Indeed, it was argued that there are other entities capable of providing the requested service in the tender, and that some of them were even interested in the possibility of submitting a bid in the tender. However, it is a fact that only the two companies before me are competing, not to mention wrestling, for years for the right to provide the said service. We are therefore dealing with a market in which competition is currently very limited, and in which the only two suppliers do not lack any ties with institutional bodies (see the Petitioner's context - pp. 36, 25-34; pp. 41, 39, 42, 8; pp. 43, 12-22). There is currently no other entity other than the Petitioner and Ness that has no connection to the institutional bodies and is interested in submitting a bid in the tender. In the Electra Afikim case , it was clarified that the size of the market is a consideration that should be taken into account, among other considerations - with the necessary caution and while giving priority to the overarching principle prohibiting a conflict of interest - when a decision is required on the issue of a concern of a conflict of interest: