Wei and Harel seek to find evidence far beyond what they have. In the exemption application (N/14), Knitork explicitly mentioned Wei as a sole supplier in the place designated for this purpose. In the order release form (P/50) he explicitly referred to the reasoning for the project (apparently, the Single Supplier Reasoning Form - N/11). This is enough to undermine the claims of concealment and to try to build on them. This, regardless of the fact that it was not clear what the reason for Kinturk was to hide or not to present the full picture of things. Beyond that, the description of the things in the exemption application (P/14) and in the order release form (P/50) are essentially consistent with the course of events with regard to the purchase of the servers in question, including the needs of the project, the scheduling constraints, the location of the servers in UltraTrade, and the fact that there is no complete match in one detail or another, does not support the claim that the Anemone Fleet was a fictitious pricing.
As stated above, the Anemone Tender was issued prior to the request for exemption from a tender. Kenitork sought to find out the existence of alternatives to procurement and to examine the price of Wee's bid by way of issuing Balam and applying for price proposals. Harel and Triple C submitted higher bids than Wei's proposal by virtue of an improper coordination arrangement that was made behind Elta's back and without Elta's knowledge. From the point of view of the procurement, which he did not know about the coordination, and on the basis of the representation presented to him, the inspections and the CBM therefore did not raise an alternative to procurement. Subsequently, Canitork and Shkedi understood that it was necessary to proceed with the purchase of the equipment from Wee, and she was also mentioned as the sole supplier in the exemption application (Shkedi, p. 1871, paras. 17-20, p. 1872, paras. 5-8, Knitork, p. 422, s. 10, p. 423, s. 5). The arguments of Wei and Harel and the attempt to build from a discrepancy of one kind or another in the description of the request for exemption from a tender or in the release form for the invitation, do not change the conclusion with respect to the pricing that preceded it and the improper coordination of the bids submitted within the framework thereof.
- In the summaries of the defense, it was further argued that the request for exemption from a tender, the decision to grant an exemption and the order for the purchase from Wei were all made on the same day – June 20, 2010 (e.g., paragraph 416 of the Wee summaries). In this context, Wei also referred to what Zagori said in his testimony, according to which when an order is issued on the same day by the exemption committee, it is reasonable to assume that there was no competition (p. 2202, paras. 16-23, p. 2203, paras. 15-16; and see also the testimony of Kniturk, p. 424, paras. 14-17, that it is not characteristic of the order being issued on the same day, and also p. 424, paras. 24-30, that sometimes the procurement fills out the form under the pressure of the project that already wants to issue the order; see also Shkedi, 1870, paras. 17-18, p. 1871, paras. 5-6, paras. 10-16, where he testified that a situation in which the decision of the exemption committee is signed on the day of the application is unusual, although it can happen, for example, when there is pressure from the project and all the relevant parties want to sign).
These arguments are also unacceptable. Factually, and only for the sake of accuracy, the order was issued on 5 July 2010 and some time after the exemption decision (P/55). In any event, and this is the main point, the arguments seek to find in the parts of the above testimonies what they do not have. Issuing an order shortly after the exemption decision could, perhaps, indicate that there was no competition After The Exemption Decision. None of this – and the testimonies referred by the defense – does not indicate that in the stages preceding the exemption, when the BLM was issued, there was no competitive proceeding and no genuine offers were requested. They certainly do not justify coordination (and what was said above in paragraph 339 339above, in connection with a similar argument raised in relation to Baltimore's Baltimore, is also relevant here).