And finally, in clause 1.5.4(d) of the tender it was determined that:
"Without derogating from the generality of what is stated in clause C, the tenders committee will be entitled to allow a bidder who he, one of his shareholders or a senior officer therein, has engaged in one of the positions listed in the section, to submit a bid for a tender, if it is found that there is a non-real concern of a conflict of interest, and that in the circumstances of the case, the committee is of the opinion that there is no justification to prevent the bidder from submitting a proposal".
Thus, at the end of the day, the respondent reserved for itself the authority to approve a bid by a bidder in respect of which there is a concern of a conflict of interest, provided that it is found that this is a "non-real" concern, and which "does not justify" preventing him from submitting a bid in a tender. In view of the above, it appears that the Committee's discretion to approve a proposal by a bidder in respect of which there is a greater concern of a conflict of interest is in the case of a bidder who falls into one of the categories listed in section 1.5.4(c) above. However, as stated above, there is no real argument that the matter of a miracle falls into one of the aforementioned categories. The Petitioner's argument is a conflict of interest and a fear of dependence stemming from other circumstances. Therefore, the discretion given to the tenders committee with regard to the miracle is relatively broad, as set out in clause 1.5.4(d).
Here it should be noted that the provision of clause 1.5.4(d) was added in the current tender after a similar provision did not exist in the previous tenders. The Respondent clarified in its response to the Petition (paragraphs 70-76) that this provision was added after the Petitioner, which won the previous tender, approached the Respondent many times with a request to allow it, in parallel with the operation of the service under the tender, to provide services in various frameworks to institutional bodies. Following these inquiries, the Respondent formulated a position whereby in view of the need for the services under the tender to be provided by professional bodies that have in-depth familiarity with the institutional bodies and the services required in the tender, and out of an aspiration to expand the ranks of potential bidders in the tender, it is appropriate to soften the requirements of independence in the tender slightly, while setting rules and taking steps to balance the fear of a conflict of interest. In its response, the Respondent noted, as an example that served as a catalyst for the addition of clause 1.5.4(d), the Petitioner's request in the framework of the previous tender to allow its shareholder, Prof. Zvi Wiener, to provide a certain insurance company with fair valuation services. The Respondent rejected this request at the time in light of the provisions of the tender at the time, although according to the merits of the matter, it was of the opinion that in appropriate circumstances it would have been appropriate to approve such a request. As stated, due to these difficulties, clause 1.5.4(d) was added in the current tender, which expanded the discretion given to the tenders committee.
- In the tender, provisions were also set regarding the employment of sub-suppliers. Section 5.3.1, under the chapter entitled "Sub-Suppliers", stipulates that: "The maximum number of sub-suppliers participating in the offer shall not exceed two...". In clause 5.3.2, entitled "Independence", it was determined in subsection (a) that: "The sub-supplier shall not provide services that are concerned with the development of the model for calculating the value of the assessed assets", and in subsection (b) it was clarified that:
"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-vendor 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 vendor. The sub-supplier will be solely responsible for providing the raw data required for the operation of the model, in accordance with the requirements and instructions of the winning supplier, and will not have any information related to the model, including the calculations, formulas, methods of analysis and the manner in which they are updated. In addition, the sub-supplier will not have access to the data provided to the provider on behalf of the entities receiving the services."