In other words, alongside the municipality's bad faith conduct, which can and may entitle the company to compensation, the question is whether, given that the position of the Ministry of the Interior had been brought to the attention of the company in real time, would it have acted like the Omreta company and exhausted legal proceedings against the Minister of the Interior, in order to realize its winning of the tender, and even continued to advance proceedings to change the plan that applies to the land, or would it have withdrawn at an early stage of the agreement in view of the calculation of the risks it would have taken?
An answer to this question of course has implications for the company's claim for compensation for damages and expenses incurred by it. After all, a point in time must be set on the timeline until it can be said that any damage or expense caused to it was within the framework of the contractual risk that it assumed when it participated in this tender, and only from this point in time is it entitled to compensation.
As stated, the parties waived the examination of the declarants, and therefore the answer to this question will be done by way of evaluation and estimation, when, among other things, the opinion of an accountant on behalf of the company is pending his investigation, and the municipality waived and also chose not to submit a counter-opinion.
- After quite a few deliberations, and given that this is only an assessment made on the basis of the conduct of other companies in various tenders that were conducted simultaneously at the time, and given the risk assessment that would have been made if the company had been aware of the position of the Ministry of the Interior on the matter, and in view of the conduct of Amarta, which chose to take a greater risk and exhausted lengthy legal proceedings in order to carry out the win, I saw fit to determine the point on the timeline in which it can be assumed that the company would have considered the possibility of canceling the agreement, as long as all the information available to it was the beginning of 2018, when the Ministry of Interior's position on the Suprematist case was accepted.
Alongside the aforesaid, and given the risks that the company took when it won a worthwhile transaction on the one hand, and the municipality's successes in obtaining the approval of the Minister of the Interior for the transactions it executed in other tenders under similar conditions, on the other hand, there is a high probability that the company's decision to withdraw from the transaction would have been formulated into a final decision insofar as the position of the Ministry of the Interior had come before it, as of March 12,2020, when it rejected the Omreta tender despite the fact that the plan that applied to the land had been changed.