"In order to establish and operate the database, it is necessary to ensure that the winning supplier, a shareholder, a senior officer or a relative of one of them does not have ownership relations, business or other material relationships that may create a conflict of interest, or any other matter that may affect the performance of the winning supplier, and that is not within the framework of its obligations under this agreement."
For this purpose, it was determined in clause 1.5.4(b) of the tender that:
"The Bidder and all its shareholders, as well as the persons who will serve in senior positions thereof, must fill out a disclosure form as detailed in Appendices 6 and 7, respectively, in full. The correctness of the information in these appendices is (sic.) A material condition in the contract to be signed with the bidder..."
Following this requirement, clause 1.5.4(b) of the tender specifies who will be considered for the purpose of this matter as "senior functionaries". Clause 1.5.4(c) of the tender stipulates what will be the law of a bidder whose information disclosure forms indicate that there is a concern that he or a senior official in whom he is in a conflict of interest. According to this section, the proposal of such a bidder will not necessarily be disqualified, but the matter is subject to the discretion of the tenders committee:
"The tenders committee will be entitled to decide not to accept a proposal, if it finds that due to the connections of the bidder or any of its shareholders, or of a senior official as stated above, there is a concern of a conflict of interest, a fear of dependence or a fear of possible harm to the implementation of the goals of the database.
Quoted from NevoHowever, alongside the discretion given to the committee, clause 1.5.4(c) of the tender states that: "Without derogating from the aforesaid, as a rule, a bidder who he, one of his shareholders or another senior position holder in the bidder, has engaged in one of the positions described below as of the date of submission of the bid, will not be entitled to submit a bid for a tender...". Subsequently, the section lists no less than 15 categories of positions that would generally not allow the bidder to submit a proposal. Thus, for example, it was determined that a bidder who is either one of its shareholders or a senior official in which they are an insurer (s. (c)(1)), a pension agent (s. (c)(3)), an investment advisor (s. (c)(5)), a banking corporation (s. (c)(7)), a controlling shareholder in one of the aforementioned entities (s. (c)(12)), or a person controlled by one of the aforementioned entities (s. (c)(13)) will not be able to submit an offer. It should be emphasized that the Petitioner has no real claim that Ness, any of its shareholders or any of its senior officials, fell into one of the 15 aforementioned categories (see the Court's questions and the Petitioner's counsel's answers at pp. 12-15 of the transcript of the hearing).