Participating in a tender process can be a strategic and profitable step for businesses, but it requires strict adherence to the tender guidelines and rules and compliance with the requirements of Israeli law. Whether you are a supplier, contractor or service provider, understanding what is allowed and what is not allowed to be done within the framework of the process can help you avoid costly mistakes and increase your chances of success. We have compiled for you a number of important guiding rules that you should follow or avoid when participating in a tender process in Israel.
- Read the tender documents and contract thoroughly
The most important step in any tender process is understanding the tender documents. In Israel, public tenders are subject to the Tender Obligation Law, which requires transparency, competitiveness and protection of the principle of equality . It is important to read and understand the terms, specifications and requirements thoroughly, in order to ensure that your proposal complies with the requirements of the offering body. Pay attention to the small details, including submission deadlines, qualification requirements and technical requirements. No less important, a contract agreement is usually attached to the tender, and while the agreement is not subject to negotiation, it is important for a lawyer with expertise in the field to go through the agreement to understand its terms and ensure that the contract is economic and does not have problematic issues – all to ensure that the tender is not won and the contract is unenforceable or uneconomic. Sometimes, a process of clarifying questions can be carried out in which the terms of the tender and the terms of the agreement can even be changed.
- Submit accurate and complete documents
In Israel, failure to submit complete and accurate tender documents may lead to immediate rejection of the bid, especially when it concerns material documents relating to compliance with the threshold conditions (such as: attaching a guarantee in the exact wording required or with an error in the bidder’s name ). Make sure that all required documents, such as corporate registration, financial statements and certificates relevant to the tender, are submitted correctly and completely and it is highly desirable that a lawyer with expertise in the field review the documents before submitting them. If the tender requires specific technical capabilities, it is important to include the documents demonstrating these capabilities. In many cases, the tender committee has the discretion to allow the completion of technical documents that were accidentally omitted, but this discretion should not be relied upon .
- Make sure to meet the submission deadline.
One of the most common reasons for rejection of bids is late submission, with submission deadlines strictly enforced to prevent violation of the principle of equality between bidders . Therefore, make sure that you prepare the tender brochure sufficiently in advance of the deadline, to take into account unexpected delays (such as: technical malfunctions in the case of digital tender submission and, in the case of physical submission, delays due to traffic jams or other unexpected events). Sometimes, the risk of cancellation of a tender win due to failure to meet deadlines exists even after the announcement of the win .
- Submitting requests for clarification
If some of the tender documents are unclear, it is important to request clarifications or additional information during the procedure, as the assistance of experienced lawyers in the field may sometimes even lead to changes in the tender conditions . It is important that the lawyers examine the mechanism for raising the clarification request because sometimes there are precise deadlines for this and because in the right hands the clarification process sometimes allows for actual changes to some of the tender conditions and the contract agreement. After the bid has been submitted, it will not be possible to challenge the tender provisions, so it is worth taking advantage of the opportunity and advantages available at this stage.
- Participation in bidder meetings
In certain tenders, there is a requirement to participate in a bidders’ meeting as a condition for submitting a bid in the tender, and sometimes the deadline for submitting requests for clarification is limited to the meeting or until it. In such a case, it is important not only to participate in the tender, but also to examine whether it is possible to attend the tender accompanied by a lawyer or professional with expertise in the field.
- Prohibition on coordination of bids between bidders
Bidder collusion is a serious offense under Israeli law . It is prohibited to make arrangements or coordination with other bidders in order to influence the outcome of the tender, whether it is coordination aimed at one winning or dividing the market between bidders so that each wins a portion of the tender. Such actions are considered prohibited tactics that violate equality and may even constitute a restrictive arrangement that amounts to a criminal cartel . In addition to disqualifying the bid and risking forfeiture of a bond submitted in the tender, this misconduct may lead to serious penalties, including criminal charges.
- Care must be taken to ensure the accuracy of the detailed information.
Providing false or misleading information in a bid or affidavit in an attempt to obtain something fraudulently is a serious offense under Israeli law. Not only will this result in the bid being disqualified (and possibly even forfeiture of the tender bond), but it may also lead to further legal action . Transparency is an integral part of the tender process, and even after winning the bid, the bid may face criticism from both the other bidders and the court, so it is important to ensure that all details in the bid are correct and accurate.
- Care must be taken to comply with the provisions of the various laws in the context of the tender process.
Submitting a bid in a tender also requires that the execution of the tender comply with legal requirements in Israel, including safeguarding workers’ rights (payment of minimum wage, absence of convictions in the field of work, etc.), environmental standards, and requirements specific to each field. Failure to comply with these requirements may result in the rejection of the bid, in accordance with the tender provisions . It is important to ensure that a lawyer specializing in the field verifies that the execution of the tender proposed in the bid complies with all relevant legal requirements.
By adhering to the rules of “what to do and what not to do,” businesses can navigate the complexities of the tender process in Israel with relative ease. Avoiding errors and mistakes when submitting the tender is an important step towards achieving the goal and successfully completing the tender process. To ensure full compliance with the Tender Law and other regulations that apply to you, it is recommended to consult with an attorney knowledgeable in tender law to ensure that the required actions are carried out in real time, even before the tender is submitted and without any delay.
Authored by Yair Aloni, Attorney
Published in Legal Channel 430 08.01.2025 Afik & Co. https://he.afiklaw.com/
