In light of the above, the committee members are of the opinion that the examination of the issue of conflict of interest should be postponed until the end of the process of examining the proposals, after the proposed models have been examined and all the circumstances have been presented to the committee, and before deciding on the winning supplier."
- Following this decision, the tender proceedings continued, in the framework of which the Petitioner's proposals were examined on their merits, and they were given points. The examination of the proposals was carried out by a committee of experts under the guidance of the Tenders Committee's advisor, Prof. Doron Israeli of Reichman University. At the same time, the members of the tenders committee and other professional bodies discussed with the respondent the issue of the concern of a conflict of interest of Ness. In the framework of these discussions, the Tenders Committee's advisor - Prof. Israeli - expressed his opinion, in the discussion held on March 19, 2024, that the model presented by Ness in its proposal is an objective model in which in order to skew the value of a specific asset, Ness will have to influence a number of parameters, including contacting Moody's (an external credit rating company), and obtaining the approval of the professional committee that is supposed to accompany the activity of the supplier that will win the tender. Israeli also noted that the biased value that will ultimately be determined for that specific asset will be exposed, according to the terms of the tender, to the Respondent and even to the general public. In Prof. Israeli's opinion, in this situation, a bias in the value of a specific asset would not be worthwhile for a miracle in terms of the cost versus the benefit that would be derived from the move, and therefore the fear that such a bias attempt would be made is low. I will note that there is no minutes of the meeting of March 19, 2024, but the matter of this meeting and the words of Prof. Israeli in the framework of it were mentioned in the minutes of the meeting of the tenders committee of June 25, 2025 (Appendix G to the reply). There is no doubt that it would have been appropriate to draw up the minutes of the meeting of March 19, 2024, but I am of the opinion that this is not a defect that goes to the root of the matter, since in the end Prof. Israeli's opinion was mentioned in the minutes of the tenders committee at a later stage, even before the petition was filed, and in any event, even without a transcript at this time, there is no difficulty - evidentiary, practical or other - to consider Prof. Israeli's position on its merits based on the data and the arguments of the parties before the court.
- The issue of the concern about Ness's conflict of interest bothered the Respondent. Therefore, on March 30, 2024, a hearing was held with the respondent with the participation of the Commissioner of the Capital Market, members of the tenders committee and its subcommittee, and other professional bodies, in which the concern of a conflict of interest of Ness was raised (paragraph 34 of the reply). According to the respondent at the end of the hearing: "All the professional bodies and the commissioner were unanimous that there is no real concern of bias in the valuation of assets due to a conflict of interest of respondent 2 (Ness - A.R.) insofar as it wins the tender, inter alia, in light of the restrictions on the winning supplier and the large number of parameters that must be influenced in order to skew the valuation of the assets." It should be clarified that the position of Prof. Israeli and the other professionals stemmed from the fact that according to the model proposed by Ness, every asset that needs to be valued is embedded in one of several predefined categories, and subsequently its value is assessed according to the rules that apply to all assets in the same category. The minority of the assets does not fall into one of the aforementioned categories, and then their value will be assessed according to the instructions and decisions of the independent professional committee that is obligated to establish a miracle (clause 5.5.3 of the tender). Hence the argument that the ability to skew the value of a specific asset is limited and not worthwhile. It should be noted that the minutes of this meeting were also not presented. For the purposes of the discussion, I am prepared to assume that such a protocol was not prepared and that there is a reason for this flaw. However, as stated above, I do not believe that this prevents the possibility of examining the respondent's position on its merits, and therefore it is not a defect that goes to the root of the matter.
- Further to the aforesaid, on August 29, 2024, the Respondent contacted Ness (Appendix H to the Reply), requesting that it provide clarifications and additional details on a number of issues as follows: Ness was asked to clarify whether, when referring to the scope of Ness's revenues, whether from institutional entities, it was referring to institutional entities held by the same controlling shareholder as one or several separate entities, and insofar as it referred to them as separate entities, Ness was required to relate to the income from them as income from a single entity; Ness was required to clarify whether the declaration that there is no institutional body from which Ness's revenues exceed 5% also relate to the indirect revenues through Danel; Ness was required to detail Danel's revenue turnover from each of the institutional bodies or groups of entities, and clarify whether the income from any entity or group exceeds 5% of Danel's revenues; Ness was required to provide data regarding Ness Am & Danel's overall revenue cycle for the years 2022-2023 and for the first half of 2024. The Respondent clarified to Ness that the aforementioned clarifications and details are required in order to ensure that Ness is not in a conflict of interest. On September 9, 2024, Ness responded to the request (Appendix 9 to the reply). In its response, Ness clarified that its declaration that Ness Am's revenues from any institutional entity do not exceed 5% of its total revenues also referred to Ness Am's revenues from Daniel, which in themselves do not exceed 5% of Ness Am's total revenues, and that it referred to institutional entities controlled by that controlling shareholder as a single institutional entity.
- On January 15, 2025, after a long and complex examination process of the Petitioner's proposals and Ness, the tenders committee convened to discuss the quality score awarded by the subcommittee to each of the proposals (Appendix to the Reply). It should be noted that at this stage the Petitioner's financial proposals have not yet been opened, so there is no concern that the decisions made at that meeting were influenced by the financial proposals. In the framework of the meeting, the tenders committee approved the recommendations of the subcommittee, and it also made a final decision on the matter of the concern of a conflict of interest by Ness. The committee decided that there was no reason to disqualify Ness's proposal due to a concern of a conflict of interest. The committee explained its decision as follows:
"... The clause (referring to clause 1.5.4 in the tender - A.R.) does not specify what are the business relationships that may create a conflict of interest.