the complexity of the selection process
of the winning bid, has constituted fertile
ground for attempts to contest the results
of tenders. Indeed, during the last 20
years, litigation relating to tenders in
Israel has exploded. Now many public
entities issuing large tenders add within
the project timetable an expected period
for the legal proceedings that may be
initiated by a losing bidder requesting
to cancel the tender or to be awarded
the tender. Furthermore, contesting the
results of a tender has been made easier,
thanks to the increasing rights of access
to information granted to the public in
general, and to bidders in particular.
For example, bidders are entitled to
request copies of the minutes of the
tender committee's meetings, of the
correspondence with all bidders, of legal
and professional opinions requested by
the tender committee, and mainly of the
winning bid itself. Such disclosure may
only be limited in few specific cases,
such as commercial secrets in certain
circumstances.
Such information rights give the
"disappointed bidder" a powerful
weapon, since the review of such
extensive documentation will in most
cases reveal some deviation or alleged
deviation from the terms of the tender.
This is why a foreign entity, when
considering submitting proposals in
international tenders published in
Israel, is always surprised to find its
legal counsel so picky regarding the risk
of a possible deviation from the terms
of the tender in the proposal, while
such deviations may not have similar
consequences in other countries.
Bidders
In order to make it easy to check
compliance, it is highly suggested to
formulate the response using the same
wording used in the tender itself. Bidders
should refrain from attaching documents
or certifications that suggest even a small
deviation from the requirements of the
tender.
prepared forms to be completed by
bidders. Tenders documents are not
always provided in Word format, and
many bidders retype the forms in order
to insert the responses and submit a
nice looking proposal. However, such
retyping often involves modifications,
or even unintentional typos that may
be meaningful (for instance, omitting
the word "not" in a sentence). Any
deviation from the wording of the forms
as they appear in the tender may lead to
disqualification of the bidder. If possible,
it is recommended to complete the forms
in handwriting, to request a Word format
version or to ask for specific instructions
as to how the forms should be completed.
The rules applying to deviations also
apply to any reservations expressed by
a bidder in its proposal with respect
to a tender request, or with respect to
any provision to which a bidder may
condition its proposal. Any reservations
or conditions in a proposal may lead
to disqualification of the proposal.
Accordingly, to the extent a bidder has
any issues to discuss with the entity
issuing the tender, the matter should be
carefully examined on a case by case
basis by the bidder with its local legal
counsel, in order to determine the best
course of action in any specific case.
All that has been said with respect to
strictness applies even more to the bid
bond or tender guaranty. ANY deviation
will lead to disqualification, even if the
deviation does not modify the scope of
the bond, and believe it or not, even
if the modification benefits the entity
issuing the tender! Israeli courts have
disqualified a bid submitted with
a bond which validity period was
exceeding the period requested in the
tender documents, since the tender
issuer should not have to exercise its
discretion in order to decide if any
change in the wording of the bond is
beneficial or not.
Bidders should submit requests
for clarification for any issue that is
unclear, even for technical issues which,
as detailed above, may have great
importance. In addition, as a result
of modifications made in the tender
tender prior to the submission date,
some contradictions or ambiguities may
arise. For example, if the submission
date has been postponed, and one of the
prerequisites in the tender is experience
of five years during the seven years
preceding the submission date, a bidder
fulfilling this requirement with respect
to the original submission date may not
be able to comply with respect to the
postponed submission date.
In specific circumstances, for
example in the case of a tender with
special technological complexity, the
selection process may include a best and
final stage, in which the tender issuer
requests bidders who have scored the
highest scores in the tender to submit
their best and final offers. In addition,
negotiations may be conducted with
certain or all of the bidders. The above
may have implications with respect to
the price and conditions proposed by a
bidder in its bid, which should take into
account that a discount may be requested
at a later stage.
law, the local laws in different countries
may often be similar, based on judicial
common sense or general principles
of equity, it seems that tender laws are
more to be seen as local laws. This may
be especially true in Israel, where the
courts had such a major contribution
in shaping the tenders rules, based on
specific cases brought before them.
Accordingly, it is strongly recommended
that any foreign company considering
participating in a tender in Israel
seeks legal guidance from a local firm
specializing in international tenders.
image of a company, the sensitivity level
of information and safety aspects so that
all employees know the company's rules
and you can enforce them. It is advisable
to include such a policy as standard in
the staff regulations.