A bidder in a tender discovered, after the winner of the tender had already been selected, that its bid lacked details that would have allowed it to receive the maximum score had it been submitted in the first place. Due to the tenders committee's refusal to allow the bid to be amended retroactively, the bidder demanded to withhold the engagement with the winner.
The Court rejected the motion for an interim injunction and held that there is no justification for withholding the engagement. The relevant considerations for granting an interim order are the prospects of the petition and above all, the balance of convenience (weighing which party will be harmed more, to the extent that the decision is made in favor of one party or another). There is no reason to allow the bidder to break through the framework of what it submitted in order to establish that its actual situation is better than what it chose to present at the time of submitting the bid because this will result in harming the equality between the bidders. Therefore, the score given to the bidder does not reflect an 'error' in the action of the tenders committee, but was given based on the data of the bid as submitted. In addition, the winner of the tender was required to carry out multiple preparation actions, in a short period of time, including: entering into lease agreements for the tender period (3 years), providing guarantees, recruiting employees to provide the services, purchasing accessories, equipment etc. Therefore, if the interim order is granted, the winner will face a hopeless situation and all its investments will go down the drain. Therefore, the motion for an interim order was denied.
For full disclosure: The winning bidder in the tender was represented by attorneys Yair Aloni and Shelly Willner of Afik & Co.