The Right of Inspection in Tender Documents

The Right of Inspection in Tender Documents

Background
By its nature, a tender process establishes a commercial interaction between the issuing authority and multiple bidders, culminating in the formation of a contract with one of them. The purpose of the tender is to maximize the economic value of the offers submitted for the goods or services provided, and as stated by Justice Cheshin, it serves as “a means of achieving optimal business results for the execution of a given project.”[1] Each bidder is required to comply with the conditions set by the issuing authority, which may at times require the disclosure of confidential information as part of the tender requirements.

In many cases, an unsuccessful bidder seeks to examine the manner in which another bidder, the successful one, was selected, in an attempt to identify flaws or improper conduct by the tendering authority. Such flaws may be found in the winning bid, in the internal procedures conducted by the authority, or in the reasoning underlying the decision to award the contract.

The Nature of the Right of Inspection
Where an unsuccessful bidder seeks to initiate legal proceedings to invalidate the winning bid, it requires access to information that will serve as a factual foundation for a petition against both the winning bidder and the tender committee. This raises questions regarding the scope of the right of inspection, the status of the applicant, who is entitled to inspect tender documents, and the extent of the information that the authority is obligated to disclose. It also raises the issue of whether such disclosure is limited solely to the winning bid or extends to all bids submitted as part of the tender.

Advantages and Disadvantages of Granting the Right of Inspection
The principal advantages of a broad right of inspection reflect two key objectives. First, it allows an unsuccessful bidder to genuinely assess whether the decision to select another bidder was flawed, by providing access to the factual basis considered by the tender committee. Second, it promotes integrity and transparency in the tender process, thereby helping to prevent corruption.[2]

Conversely, it may be argued that granting such a right undermines the objectives of the tender. The right of inspection may conflict with interests such as privacy, trade secrets, and other intellectual property rights of the successful bidder or other participants. An unsuccessful bidder may obtain sensitive business information for unrelated purposes through the exercise of this right. Similarly, disclosure of competitors’ bids may lead to less optimal offers in future tenders or even facilitate de facto coordination among bidders.[3]

Normative Framework for the Right of Inspection
Under the Mandatory Tenders Regulations, 1993, which apply to government ministries and public bodies, Regulation 21(e) provides that a participant may, within 30 days, review the tender committee’s protocol, its correspondence with bidders, professional opinions prepared at its request, the position of the legal advisor to the committee, and the winning bid, and receive copies of such documents, subject to certain limitations, including the protection of trade secrets or concerns relating to state security, foreign relations, the economy, or public safety, as well as the exclusion of legal opinions concerning the tender process.

With respect to local authorities, Regulation 22 of the Municipalities (Tenders) Regulations, 1987, provides that the right of inspection is limited to the committee’s final decision and the winning bid. From a textual perspective, this provision is narrower; however, case law has expanded the right pursuant to principles of administrative law.[4]

An additional normative source is the Freedom of Information Law, 1998. Each of these legislative frameworks expressly provides that it does not derogate from rights established under other laws, and therefore the available avenues operate in parallel, each subject to its own limitations.[5]

Scope of the Right of Inspection
As a general rule, an unsuccessful bidder enjoys a broad and fundamental right to inspect tender documents as provided in Regulation 21 of the Mandatory Tenders Regulations.

However, the question arises whether there is also a right to inspect non-winning bids. Case law establishes that such inspection may be permitted in certain circumstances, where the applicant raises a substantiated claim of a defect in the tender committee’s decision that could have led to its own success in the tender, and where inspection of those documents is necessary to prove that defect.[6] This right is subject to limitations, including the ranking of the applicant’s bid, the potential impact on its chances of success, the scope of the requested information, potential harm to other bidders, and the need to avoid unnecessary litigation.

As for a potential bidder who chose not to submit a bid, it was held in the Afcon case that it is appropriate to recognize, under certain circumstances, the standing of such a bidder to challenge the tender process and its results, and to grant a corresponding right of inspection in order to give practical effect to that standing.[7][8]

The Dan v. NTA Tender Committee Case [9]
In this case, Dan Public Transportation Company challenged the award of a tender to Egged concerning the operation of the Green and Purple lines of the Tel Aviv light rail. Dan appealed the decision of the District Court, sitting as an Administrative Court, which upheld the tender committee’s decision.

The appeal concerned the legal interpretation of the tender documents, with the appellant arguing that the winning bidder had submitted a manipulative bid[10], as well as the committee’s refusal to grant access to the documents requested by the appellant.

The Supreme Court emphasized the importance of the right of inspection in tender law. Justice Solberg held that even if the award itself remains unchanged, the right of inspection stands independently. The Court further held that the lower court erred in dismissing the request for inspection without sufficient reasoning and without addressing it substantively. Accordingly, the matter was remanded for reconsideration, with instructions to determine which documents should be disclosed, subject to justified claims of confidentiality.

At the same time, the Court suggested that the appellant reconsider the practical benefit of insisting on the right of inspection, given that the substantive grounds of the appeal had already been rejected.

Conclusion
The right of inspection in tender documents is well established in both legislation and case law. Where the requested inspection relates to the core of the tender, the right is interpreted broadly. At the same time, in certain circumstances, the right extends to non-winning bids and even to potential bidders who ultimately did not submit a bid, subject to defined limitations.

‎1.HCJ 6926/93, Israel Shipyards Ltd. v. Israel Electric Corporation Ltd., 48(3) PD 749, 800 (1994)
‎2. Administrative Appeal 10392/05, A. Ozen Construction Co. Ltd. v. Israel Land Administration (Nevo)
‎3. Administrative Appeal 4757/08, Clear Chemicals Marketing (1994) Ltd. v. State of Israel, Ministry of Defense (Nevo)
‎4. Administrative Appeal 9241/09, Sheleg Lavan Ltd. v. Ashkelon Municipality (Nevo)
‎5. Compare Section 20 of the Freedom of Information Law with Regulation 21(e) of the Mandatory Tenders Regulations
‎6. Administrative Petition (Jerusalem) 1089-09-15, M.G.A.R. Ltd. v. Ministry of Education; see also HCJ 6926/93, Israel Shipyards Ltd. v. Israel Electric Corporation Ltd. (Nevo)
‎7. Civil Appeal 3888/15, Afcon Control and Automation Ltd. v. Arad Ltd. (Nevo)
‎8. For example, where a party refrained from participating in a tender due to a threshold requirement that was not enforced in practice, thereby undermining its original decision; however, a cautious approach is required, including examination of the reasons for non-participation and sufficient certainty that the party qualifies as a potential bidd
‎9. Administrative Appeal 74778-09-25, Dan Public Transportation Co. Ltd. v. NTA Tender Committee et al. (Nevo)
‎10. See the article on manipulative bids published on our website, October 2025