"Indeed, as was ruled in the Y.B.M. case: 'In determining proper conduct, ideals that are not attainable should not be set' (ibid., at p. 273). This is especially so, in circumstances in which there is a limited market in which there is prior acquaintance between the various players in the market, and setting too high a threshold may lead to a decrease in the ISA's ability to use the best experts or to reduce the number of competitors in the tender... However, on the other hand, the minority of players in the market does not lead to a sweeping abolition of the rule prohibiting conflicts of interest."
(ibid., at para. 23; and see similar remarks made in the matter of the Legal Forum for the Land of Israel in paragraphs 27-28).
- It was possible to add to the cauldron of considerations, in its haste and mercy and in the margins, the fact that Ness's proposal is significantly cheaper than the Petitioner's proposal, so that the disqualification of Ness's proposal would cause real damage to the public's pocket. Over the years, it has been ruled that such a consideration is invisible and unavoidable (see, for example, the majority opinion vs. the minority opinion in the High Court of Justice case 688/81 Migda B Tax Appeal v. Minister of Health, IsrSC 36 (4) 85 (1982); Appeal Petition/Administrative Claim 7383/23 Kfar Giladi Quarries Limited Partnership v. Israel Land Authority (28.5.24)). However, over the years, and especially in recent years, there have been a tiny number of voices where there have been voices wondering whether the time has not come to reflect on the caution required after this approach (Civil Appeal 6926/93 Israel Shipyards v. Israel Electric Company, IsrSC 48 (3) 749, 781, at paragraph 40 of the judgment of the Honorable Justice Cheshin (1994); Appeal Petition/Administrative Claim 20037-03-25 Zohar Hutzot in Tax Appeal v. Kiryat Ono Municipality, at paragraph 25 (22.4.25); Omer Dekel, Tenders, 1, pp. 135-139 (2004)). An attempt to find a balance between the good reasons that underlie the existing rule, despite its rigidity, and the need to take into account the economic aspect of the tender, was prominently expressed in the words of the Honorable Judge Y. Amit (as he was then called) in the appeal of Petition/Administrative Claim 5375/15 Security Services Avidar v. Netivei Israel (August 11, 2016):
"In the competition between the purpose of economic efficiency and the purpose of the principle of equality, the case law explicitly chose the principle of equality, which is commonly viewed as the 'overarching principle' in tender law... I do not intend to reflect and deny this opinion, which has been on strike in case law for many years (for another opinion see Dekel: The Objectives of the Tender, at pp. 443-448). However, when we come to realize the principles of equality and fairness, we must not forget the principles of economic efficiency and the "trembling hand" when the result is the disqualification of a proposal while causing a real loss to the public purse and the public interest.