New Remedies in the High Court of Justice

תקציר

The case of Negev Building and Development Ltd. v. Minister of Defence may be considered a most important one; it would appear that in order to achieve better protection of the citizen's right, the Supreme Court has decided to explore new avenues. It is evident that when considering innovations in administrative law, the Supreme Court turned in part to French administrative law (as it did a few years ago in a case of equal importance ). The facts of the case were as follows: The petitioners had won tenders issued by the Minister of Defence for the construction of new roads in Sinai and were informed that the relevant contracts were "under preparation". A few days later and after discussions at the Ministry, it appeared that the Department of Public Works was able to carry out the work at a lower figure than the petitioners. It was consequently decided not to conclude the contract, and the petitioners were informed that the deal was off, the Government intending to carry out the work itself (i.e., through the Department of Public Works). The petitioners sued for an order enjoining the Minister of Defence to award them the project. The argument was very simple: in the view of the petitioners, since they had won the tender, the Minister had no choice but to engage them. At this point, the petition could have turned specifically to the law relating to tenders, which has been discussed by the High Court of Justice on many occasions. The Supreme Court has indeed created a "code" of public tenders in the country. Nevertheless, with regard to the case under discussion, Berinson J. (who delivered the judgment of the court) observes that "In the vast number of decisions of this Court in matters of tenders since the sixties, we do not find any case which presents any similarity to the present case..." (p. 452). Berinson J., however, reached his decision without hesitation; a decision which seemed inevitable. The Minister, he ruled, always has the right to cancel a tender. It may be added that generally, under the contract itself, the Minister has the right to cancel a contract already signed or approved even if the work to be done under the contract has begun, but obviously in such cases there is a right to compensation. It would therefore be absurd if the Minister who has this right to cancel a contract, should not have the right to refrain from signing a contract! Of course, the Minister could not decide to give the contract to somebody who did not win the tender, but he has the alternatives either of not having the work done at all or of having it done by one of his own departments. If the judgment concerned only the problem of cancellation of a tender, it would probably not be considered a major one. But it examines a much more complicated question, and the solutions given may be considered as introducing new concepts into Israel's administrative law. Having affirmed the Minister's right to cancel a tender, Berinson J. passed on to another question; namely, the possibility of granting compensation to the petitioners who consider themselves injured by the Minister's decision. The two questions to be considered are (a) Is the High Court of Justice entitled to grant such compensation? and (b) What is compensation really given for? The two questions are of particular interest in administrative law, and it may be opportune to examine them along with a short description of French administrative law, to which Berinson J. himself refers.