...
I want to say that we should not apply the principle of equality mechanically, but rather we must examine the defect on its merits, while also taking into account the economic purpose underlying the tender laws."
(ibid., at paragraphs 4 and 10; see also - Appeal of Petition/Administrative Claim 58175-07-25 Al-Ayman Social and Welfare Services v. Ministry of Social Affairs, at paragraph 14 (August 7, 2025); Appeal Petition/Administrative Claim 9289/20 Lite T. Don't. V. Ann. T. A. v. Detachment of Municipal Transportation Routes Estates, at paragraphs 12-13 (May 20, 2021); Dekel is not obligated to disqualify a defective proposal - a proposal for an alternative arrangement as to the law of defective bids in the Legal Tender 45 157 (2015)).
Time will tell whether these voices will mature into a cautious change in the existing halakha. In any case, in the matter before us, the fact that a Miracle proposal is significantly cheaper than the Petitioner's proposal was not used and will not serve as a reason for its non-disqualification, but it leads to the fact that the final result reached by the tenders committee, according to which a Miracle proposal will not be disqualified, is consistent with the economic purpose of the tender.
- The factual basis that underpinned the tenders committee's decision
The Petitioner argues that the tenders committee was not presented with a full factual basis that enabled it to consider its arguments regarding the fear of a conflict of interest, and therefore it is lawful that the matter of the tender should return to the committee's table, so that it will make a new decision based on a full factual basis. The Petitioner's main argument is that the Committee did not have accurate data regarding Ness's income if, directly or indirectly, it was from its ties with the institutional bodies. This argument is not convincing. As I noted above, a variety of considerations lead to the conclusion that there was no flaw in the Tenders Committee's conclusion that in the circumstances of the concrete matter the Ness proposal should not be disqualified. The factual basis required for the purpose of examining the aforementioned considerations was also laid before the committee - on the one hand, the nature of the concern of a conflict of interest; the size of the market; the details of the legal relationship between Ness and the family of companies of which it is a part; the details of the model proposed by Ness in its proposal and the possibility of skewing valuation data within it; the details regarding the means of control and monitoring of Ness's activities; and on the other hand, the fact that Ness and Danel have not negligible financial incomes; Even if their exact scope has not been fully clarified, their ties to institutional bodies have not been fully clarified. In this state of affairs, there was no flaw in the fact that the committee did not see fit to demand further clarifications from Ness as to the exact scope of the said revenues, and I see no reason to instruct it to request such clarifications at this time.
- Therefore, the Petitioner's arguments regarding the disqualification of a miracle proposal due to a fear of a conflict of interest are rejected.
- Sub-Suppliers
The Petitioner has arguments regarding the sub-suppliers with the help of which Ness seeks to provide the service required in the tender. The Petitioner claims that contrary to Ness's declaration in its proposal, it intends to use two sub-suppliers - Moody's and Danel - but these sub-suppliers do not meet the requirements of the tender. With regard to Moody's, it was argued (para. 204 onwards of the petition) that it is supposed to provide material data for Ness's model, and that it is in a conflict of interest due to its ties with institutional bodies. With regard to Danel, it was claimed that according to Ness's proposal, it intends to use Danel's software for the purpose of: "the ongoing operation of the citation system and the CRM system that manages the response vis-à-vis the institutional customers," and that Danel's software will serve as an "external interface for users" (paragraph 228.2 of the petition). These arguments are not convincing for the reasons that will be detailed below.
- In clause 5.3.2(b), the Respondent clarified what is permitted and prohibited in the bidder's relations with its sub-suppliers:
"The winning supplier may contract with a sub-supplier, who will be responsible for providing the raw data. This sub-vendor will not have access, directly or indirectly, to the model for calculating the value of the assessed assets, it will not be allowed to update it, and it will not have any access to the data provided by the main vendor to the institutional entities. The sub-provider will not affect the model products in any way, except for an effect that derives directly and naturally from the transfer of the raw data to the winning provider."
- In its decision of June 25, 2025 (Appendix 7 to the Respondent's Response), the Tenders Committee determined with regard to Moody's that:
"In accordance with the inquiries made by the professionals, Moody's provides raw data that is entered into the valuation model, and is not involved in the provision of the services themselves. There is no difference between these services and services provided by Moody's to other parties from whom you purchase the license to use. In addition, no special adjustments will be made by Moody's in favor of Ness Fair Value for the purpose of providing services... The professionals rejected Fair Margin's claim that Moody's would actually provide the products of the model evaluation presented by Ness Pierre Value, and that Moody's would provide the model's work itself. In light of the aforesaid, the committee is of the opinion that Moody's is not a "sub-supplier" of Ness Fair Value, but rather a "shelf product", without specific adjustments for Ness Pier Value.