A tenders committee chose two bidders as the winners of the tender even though the bank guarantee they submitted did not match the updated wording required in the framework of the clarification process. A bidder in the tender demanded that the decision of the tenders committee be revoked and to declare it as the winner in the tender.
The Supreme Court held that there is no justification for intervening in the decision of the tenders committee, inter alia because the addition of the guarantee in the original version does not constitute a defect that justifies the disqualification of the bids in light of the failures of the tenders committee and the good faith of the bidders in the tender. The Court does not sit as a "supreme tenders committee" and intervention in the decisions of the tenders committee is reserved for exceptional cases only. Where there was a defect in the manner in which the change was published in the bank guarantee that must be attached to the bids, so that it cannot be assumed that the matter was brought to the attention of the bidders in the tender, the submission of a bank guarantee based on the wording that preceded the change, should not be considered as a defect in the guarantee. In this case, there were flaws in the conduct of the tenders committee, as in the email, to which a clarification document was attached and under which a bank guarantee in an amended version was to be submitted, it was not stated in text of the email that it was necessary to submit a bank guarantee in an amended version. In addition, the notice was sent only a few days before the deadline for submitting bids, when the document was attached at the end of a file with dozens of pages. Thus, due the fact that the bidders acted in good faith and considering the defect in the manner in which the required change was published, the guarantees that were attached in their original version cannot be regarded as guarantees that had a 'defect', the discretion of the tenders committee that chose to validate the bids should not be interfered with.