A “tender” is defined by the Israeli Supreme Court as an institutionalized framework for conducting negotiations, in preparation for signing a contract under competitive conditions, between different bids.[1]

Israeli Public Tenders Law has not developed as a separate field of law, but rather as an integral branch of Israeli Public Law. Accordingly, it has been, for many years, governed by substantive and procedural rules of Public Law. However, the rules that apply to Public Tenders Law, in the last three decades, are both from Public and Private Law (being this dual applicability widely known as the “normative dualism principle”).

The two underlying goals of the Israeli Public Tenders Law are:[2]

(a) the public goal. The public goal guarantees the integrity of the government entities, and that they conduct their activities in a way that provides an equal chance, and fair treatment to all members of the public;

(b) the economic goal.  The economic goal is aimed at obtaining,  by means of the tendering process,  the best bid for the government, which proposes the best price and quality possible

At first glance, the underlying goals of the Israeli Public Tenders Law may seem both convincing and morally sound, particularly since Israeli case law shows a vigorous aspiration to always strike a balance between the public and economic goals, in order to achieve a “just” judgment.

Nevertheless, from a more profound look, the Israeli Public Tenders Law is revealed as a backwarded set of rules, being enchained by restrictive and  rigid Public Law principles, which overshadow the economic goal of the tender.

The blogger’s opinion is that the only goal that should underlie the Public Tenders Law, is the economic goal, while Public Law principles should serve only in aid to the furtherance of the economic goal, thereby maximizing the wealth, for the benefit of all the taxpayers and the Israeli economy as a whole.

This blog analyzes key aspects of  the Israeli Tenders Law which, in the opinion of the author, crucially affect the attainment of the economic goal; it will propose changes in the law, aimed at achieving the economic goal of the tender, which is very much undermined under the current law. blog will particularly focus on the legal rules governing the areas of: defects in documents of bids, disqualification of bids and tender procedures,  quia timet remedies, compensation awards, and the right of standing.

It is hoped, that the conclusions of this blog, as well as the proposals for solution outlined therein, will be noted by decision makers in Israel, and adopted as law, in order to transform the Israeli Public Tenders Law into a powerful engine, which will enhance the Israeli economy and drive it forward.

Footenotes:

[1] P.D Mem Gimel(1) 441, at p. 480   Beit Yules Ltd. v. Raviv Moshe & Co. Ltd22/82Additional Hearing.

[2] Supreme Court 368/76 Eliyahu Gozlan v. Beit Shemes City Council P.D. Lamed Alef (1) 505, at p. 511.