Legal Updates

Appealing the results of a tender must be done with as short a delay as possible

March 3, 2021

A company that competed in a tender issued by a municipal sewage corporation sought, after a month and a half, to disqualify the competitor from winning the tender because it did not meet the tender threshold conditions.

The Court rejected the motion to disqualify the winning bid and held that the losing company submitted the motion at an unreasonable delay. The rule of thumb when dealing with tenders is that the length of time allowed in tender proceedings to appeal the results of the tender must be very short, because any delay in appealing such results, even a small one, may change the circumstances in a way that prevents the possibility of disqualifying the results. In order to determine whether an unreasonable delay occurred, it must first be examined whether there was an objective delay, i.e. whether the delay harmed the interests of the tender publisher and the tender winner, and whether they changed their circumstances in such a way that disqualifying the win will bring about unreasonable harm to their financial interests. Secondly, it is necessary to examine the subjective delay and whether the delay on the part of the party seeking disqualification of the results implies that it waived its rights to do so. Ultimately, it must be examined whether the rejection of the motion will result in a serious violation of the rule of law that justifies ignoring such delay. Here, the winner of the tender has already started providing the services and changed its circumstances based on the results of the tender, and the losing company was significantly delayed in raising its claims even though it knew from the moment the winning bid was revealed that the winner did not meet the threshold conditions. In light of this, the claims of the losing company should be rejected and the results of the tender should be upheld.