Legal Updates

The Tenders Committee may allow the bidder to complete missing documents after submitting its bid

April 15, 2022

A tenders committee selected a bidder, who forgot to attach 11 appendices to its bid, as the winner of the tender and allowed it to complete the missing appendices.

The Court held that the decision of the tenders committee was reasonable because these were technical defects that did not violate the principle of equality. Israeli law states that a defective bid (including a missing bid) will be disqualified, but the tenders committee has discretion not to disqualify a bid. While a technical defect can be remedied retrospectively, a material defect will usually lead to the disqualification of the bid. Here, the appendices that were not attached to the bid due to a mistake in good faith and were completed retrospectively are in part the bidder's statements regarding the state of affairs that actually existed at the time of submitting bids in the tender and did not change (e.g. a statement of the absence of previous convictions, a statement of non-coordination of bids in the tender or proper disclosure) while other declarations were bidder's future undertakings regarding compliance with the law or the tender requirements during the provision of the services (e.g. commitment to avoid conflicts of interest and confidentiality, commitment to comply with building and security requirements, etc.). Although the missing documents were intended to prove the bidder's compliance with the tender threshold conditions, the tender committee's decision to allow the bidder to complete the missing documents is reasonable under the circumstances, as the failure to attach the documents at the end of the day did not create an improper room for maneuver or a violation of the principle of equality as these are only declaratory statements that did not entitle the bidder to a score or any advantage over the other bidders.