The Petitioner argues that the Respondent erred in setting as a test for the existence of a material business relationship a threshold of income in the scope of 5%, a threshold that is not mentioned in the tender documents, by ignoring the financial scope of the revenues that Ness Am has from any institutional entity, and by ignoring the total financial scope of the revenues that Ness Mother has from its ties with all the institutional bodies combined. In this context, the Petitioner emphasizes that Ness Am's total income amounts to hundreds of millions of ILS per year, and therefore even an income of less than 5% from any institutional entity is substantial income, all the more so an income of such a magnitude that grows from a connection with a number of institutional entities.
The Petitioner claims that the Respondent did not examine or collect the economic data that it required in order to make an informed decision on these claims, and therefore the Tenders Committee's decision is based on a factual basis that is lacking.
The Petitioner claims that Moody's and Danel are sub-suppliers of Ness, as defined as sub-suppliers in the tender provisions, and that they do not meet the conditions of independence and the other limitations required in the tender with respect to sub-suppliers.
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0Discussion and Decision
- The starting point for our discussion is the fact that Ness indirectly has certain ministers with the institutional bodies. The existence of such relationships raises a concern that at the time of realizing its winning of the tender, and at the time of execution required of it pursuant to it, Miracle will find a conflict of interest between its obligation under the tender to evaluate impartially and without any foreign influence the value of the non-tradable assets of the institutional entities, and the interest of the institutional entities to enhance the value of their assets in order to recruit customers in the competitive market in which they operate. This is the starting point, but not necessarily the end point. As we will see below, both according to the case law and according to the provisions of the tender, no fear of a conflict of interest will require the disqualification of Ness's bid as implied by the Petitioner's arguments. The appropriate solution for dealing with situations in which a person or body is in a situation in which a concern of a conflict of interest arises is not automatic disqualification. There may be other appropriate solutions, and the decision as to which is the appropriate solution depends on a number of circumstances and considerations, including: the nature of the authority held by the person or body in respect of which the concern arises - whether it is a concern of a conflict of interest in the context of the use of judicial or quasi-judicial authority or in the context of the use of technical administrative authority; The nature of the body in respect of which the concern arises regarding a conflict of interest - whether it is a clear public body or another body; the intensity of the concern of a conflict of interest; the possibilities that exist to avoid the concern or to reduce it by less extreme means than the complete disqualification of the body in respect of which the concern of a conflict of interest arises, and more. We will deal with this below, first describing the normative basis relating to the prohibition of conflict of interest, and then we will examine the circumstances of the case and the derivative from them regarding the question of how to deal with Ness's proposal.
- Rulings on Conflict of Interest
The prohibition regarding being in a conflict of interest is a long-standing and well-established principle: