Third, the coordination correspondence from real time is inconsistent with Shahar's version in question.  As stated above, on June 8, 2010, the day after the IDF, Shachar hurried to contact Gilad and Naveh and asked them, "Please don't send anything, not even by mistake.  I will send you today what to convey to Shlomi" (P/21, underline added; Shortly afterwards, Shachar forwarded the prices that each of them must submit in the bids to Elta, and they submitted bids accordingly).  This request by Shachar is inconsistent with the version currently under discussion, as if it was Shkedi and Kanitork who asked for another offer, or that Gilad had reservations and was not interested in submitting a proposal.  On the contrary, Shachar's request indicates that he was concerned about submitting proposals that would not be coordinated with him and that could harm the borrower.  Shachar's version even contradicts Shachar's own statement that the coordination was intended to ensure that there would remain a profit accompaniment in the transaction – that is, that the coordination was in the interest of Wei and not of ELTA or on its behalf; According to Oshri, there was no certainty that the transaction would win the transaction and that the coordination was intended to increase the chances of it winning (see paragraph 360 above).  There was no response to these last words, at least not a real response, on the part of the defense.

In view of the above, this version of Shachar should be rejected as unreliable.  In fact, Wei and Harel, in their summaries, in the parts relating to the charge of the Anemone Police Department now under discussion, did not seek to adopt this version or build from it (and what is stated in the middle part of section 440 of Wee's summaries does not constitute a real or sufficient reference in this matter).

394. The argument that the discount given by Wei after the pricing is not related to competition – we saw above that at a meeting held on June 17, 2010, a few days after the submission of the coordinated bids, Wei agreed to give Elta a discount of approximately $60,000 from the price (see paragraph 368 above). Harel claimed in its summaries that the offers of Harel and Triple C were significantly higher than Wee's offer, and therefore the savings were not achieved due to competition (e.g., para. 359 of Harel's summaries).  This argument raises a difficulty and does not change it.  It is difficult to hear from those who thwarted the competition and the attempt to clarify the existence of real alternatives to procurement by submitting coordinated price quotes, arguing that it was not the competition (which he thwarted) that led to the price reduction.  Since it is a matter of price adjustment, which falls within the scope of the absolute holdings, it is not even required to prove the potential to harm competition (and certainly it is not required to show that it was a competitive action taken by the principal that actually led to a beneficial result despite the coordination).    It is precisely the significant discount given by Wei – about 15% – that indicates that the price it offered was not optimal for Elta, and further strengthens the justification for ConnectYork's attempt to clarify additional alternatives and examine the price that was offered, by way of a request for quotes (the bids in response to which the companies coordinated).
395. The argument regarding Gilad – in relation to this indictment as well, Harel claimed that Gilad acted to help create a false representation of competition, at the request of his friend Shachar, whose win was guaranteed, and contrary to Harel's interest in not selling used computer equipment and while endangering it. As stated above, Gilad was not brought to testify.  No evidence was brought that he acted contrary to the position or instruction of any person in Harel.  Indeed, the coordinated proposal submitted by Gilad on behalf of Harel in the Anemone Campaign, the subject of the fifth indictment, was higher than Wee's proposal (in accordance with the coordination) and it was Wei that accepted the invitation.  However, as stated above, there is no room to examine Gilad's conduct in the BLAM, which here is detached from the overall picture, detached from the general coordination of projects in the civil appeal that is the subject of the first indictment (coordination to which Zeiger was also a party), and while ignoring other projects in which the result of the coordination was that it was actually Harel who won (as we saw, for example, in the fourth indictment above).  In this situation, it cannot be said that Gilad acted contrary to Harel's overall interest.  Nor was any evidentiary basis presented that Gilad acted to promote any personal interest of his own (and the hypothesis that he wanted to help a friend is not enough).
396. In view of the aforesaid, the defense's arguments should not be accepted and do not change the incriminating conclusion. The coordination of the quotations is clearly evident from the Bible and is supported by testimonies.  The defense's arguments should be rejected on the basis of the approval of a single supplier by the project and on the basis of the procedures for exemption from a tender that came after the coordination.  The defense's arguments that the CBM was issued for the sake of appearance only cannot be accepted, and the defense does not have a real deal with what Oshri and Shahar said, including that in the circumstances of the case there was no justification for a single supplier, that Wei's win was uncertain, because through the coordination, Shachar sought to increase Wei's chances of winning, neutralize the competition and ensure that Levy would remain a sufficient profit in the deal.

The Fifth Charge: The Result

397. The result of the aforesaid is that it has been proven, beyond a reasonable doubt, that the coordination and restrictive arrangement that is the subject of the fifth indictment – the Anemone Patrol – between Wee, Harel and Triple C, all as described in the fifth indictment. Therefore, and in view of the reasons detailed above, I convict Wee, Harel and Triple C of the offense of a party to a restrictive arrangement under section 47(a)(1) of the Competition Law, as drafted on the eve of the commencement of Amendment No. 21, together with sections 2(a), 2(b)(1), 2(b)(3), 4 and 55A of the Competition Law, as well as the offense of fraudulent receipt under aggravated circumstances, under section 415 of the Penal Law.  The conviction is also based on section 23(a)(2) of the Penal Law.

Oshri and Nahum - Section 48 of the Competition Law - Officer's Liability

398. As part of the fifth indictment currently under discussion, Oshri and Nahum were charged with offenses under Section 48 of the Competition Law.
399. For the reasons detailed above in the discussion of section 48 in connection with the previous charges, here too it was proven that the elements of the offense under section 48 of the Competition Law were fulfilled in Oshri and Nahum with respect to the fifth charge and the date on which it was committed: both are active managers in companies; Wei and Triple C were convicted of the offense of a party to a restrictive settlement in the charge here; Oshri and Nahum were not able to prove that they had done what was necessary for the purpose of supervising and preventing violations of the Competition Law (the coordination with the Anemone Task Force, from the beginning of June 2010, falls within the scope of the period for which the accuser sought to convict Nahum of offenses under section 48 of the Competition Law, even after this was reduced to oral summaries: p. 6498, s. 21 - p. 6949, s. 1).

The Sixth Charge

The Sixth Charge: Project Tarp - Balam from July-August 2010

400. The sixth indictment was directed at Shahar and Wee, Zeiger, Gilad and Harel, Naveh and Triple C. According to the indictment, on July 6, 2010, ELTA applied for a price quote for the supply of computer equipment for the Tarp project.  The aforementioned defendants were credited with being a party to the arrangement whereby Wee and Triple C would submit offers higher than Harel's offer in order to allow Harel to win the Tarp Alliance.  It was claimed that in return, Harel agreed to purchase the storage system in Balam Tarp from Vey.  According to the allegations, the parties submitted their bids in accordance with the arrangement when Harel was selected to carry out Balam Tarp in the amount of approximately $1 million and purchased the storage systems for approximately $240,000.  It is also attributed to the defendants in this charge that they presented Elta with a false representation according to which their proposal was submitted independently, without consultation, coordination or contact with another bidder, and in any case they did not disclose the fact of coordination between them (the misrepresentation), and that based on the misrepresentation, ELTA's opinion regarding the validity of the bids was accepted and Harel's bid was accepted as a winner.  Oshri and Nahum are credited with not supervising and doing everything possible to prevent an offense under the Competition Law.

The case of Shahar, Gilad and Naveh ended, as stated above, in plea bargains.  Shachar was convicted of the offense of being a party to a restrictive arrangement with respect to the Tarp Police Department, without being charged with the offense of fraudulent receipt.  Gilad was convicted of the offense of a party to a restrictive arrangement and of the offense of receiving something fraudulently, without any aggravating circumstances attributed to him.  As part of the arrangement with him, Naveh was not charged with an offense in connection with Lt. Col. Tarpe.  None of this negates the possibility of convicting the companies or Zeiger of the offenses attributed to them, to the extent that guilt is proven at the required level (see the discussion at paragraphs 201-214 above).