Therefore, all the arguments regarding the call ejections should be rejected and they should be determined to be admissible as evidence. The arguments regarding the admissibility of the data outputs in relation to online pricing will be addressed separately in the framework of the online pricing discussion.
- Further to this general background, we will discuss below separately each of the pricing stages: the Oranim and the online pricing. At the outset, we will briefly refer to the events that preceded the pricing proceedings.
Events prior to the publication of Balam Oranim
- In the beginning, it was Harel who worked with the project's people. Harel was involved in the formulation of the solution and provided Elta with a server for the purposes of experimentation and feasibility studies for the project (Exhibit 1 to P/126; P/125, Shkanevsky, p. 994, paras. 3-5). Harel even submitted an initial proposal for the project on March 29, 2011, in preliminary stages, and a few months before the matter was transferred to Maman (P/127, Shkanevsky, p. 914, paras. 16-24). It was Harel that acted against the project despite the fact that only a relatively small part of the contents and equipment were included in the framework of the Comptroller's agreement (Shkanevsky, p. 916, paras. 1-24, where he explained that Harel's proposal included a discount of 51.8% in relation to one of the components in accordance with the Comptroller agreement, while the discounts given in relation to the other components, 35%-45%, were not relevant to the Comptroller General agreement; p. 980, paras. 23 - p. 981, 6; P/29 Email correspondence dated 31 August 2011 and 1 September 2011 (paragraph 5) where it was noted that some of the equipment was not under the Comptroller General's agreement).
- As we will see below, at the end of the procurement process, it was Wei – and not Harel – who won and it was the one that supplied the project's contents to IAI.
- Wii claimed that she was the one who worked on the project in the first place and that she had absolute preference in the project and vis-à-vis the manufacturer – IBM (e.g., Oshri, p. 4548, paras. 16-19, where Oshri claimed, inter alia, that Wii worked on the project and received it from IBM). These claims were not substantially supported. Do not contract. No evidence was presented of Wee's involvement with the project or with the procurement or in any connection to the project in the dates preceding the issuance of Balam Oranim (Wee attempted to support its claims by Wee and IBM of May 24, 2011, N/264, N/336, N/335; the correspondence revolved around a request from IBM in any way; however, no evidentiary basis was presented linking the correspondence to the project in question; Oshri's testimony in this matter was nothing more than an assessment based on a claim that at the time it was the only hand that existed to Elta as ISI, p. 4537, paras. 4-7; Oshri himself confirmed there that from the correspondence itself it could not be known that it was related to the Oranim project; the bid itself or the request for the bid was not presented; there were other projects at the time of the correspondence and afterwards; the serial number of the bid in the correspondence does not correspond to the bid number given at the end of the day to the Oranim project (N/214, as opposed to what is recorded in the correspondence of May 24, 2011, 08:50); During his interrogation at the Authority, Oshri did not remember the project at all, P/215, paras. 117-135; The same is true of Shahar, p. 3500, paras. 7-3501, para. 30, where he confirmed his statements from the interrogation; This, too, can project on Wee's claim as if she was the one who worked on the project in the first place with the project's people or in connection with the project).
- As stated above, the evidence presented indicates that it was Harel who worked with the project, that it provided it with equipment and even made an initial offer, and that there is no real evidence of any involvement of Wei in the project or with the procurement prior to the date of the issuance of the Oranim Municipal Appeal in early September 2011 (see also: internal documents of the Civil Appeal, which show that prior to the Civil Appeal, only Harel's proposal was given to the project, N/29, email correspondence of September 1, 2011, para. 4; P/126, para. 3; Shaknevsky, p. 1039, paras. 1-4, where he testified that the project worked with Harel; The configuration of Harel's initial proposal for the project dated March 29, 2011 (P/127) corresponds to the proposals submitted to the project at the end of the day (e.g., P/133) and indicates that no real work or material changes were made after Harel's proposal and its work with the project; The letter to Gilad in P/131, an email correspondence dated September 13, 2011, which relates to the project as "an ELTA project in which you are involved," also supports the aforesaid; This is in contrast to the appeal to Levy, N/266, which does not contain the slightest hint of Wei's previous involvement in the matter; See also what Oshri wrote in N/267, N/341, from which it appears that it was not Wii that characterized the project's configuration).
- At the end of the day – and after the alleged coordination arrangement, to which Shahar Gilad and others were a party – it was Wei who won the Oranim project.
- An explanation of this can be found in a correspondence dated July 31, 2011, about a month before the publication of the Oranim Bulletin (P/388). On this day, Shachar wrote to Zeiger and Gilad Maharel, among other things, as follows: "...I spoke to Gilad today and complained to him that it's not fair that you don't let me win anything. It's a bit of a pig, don't you think? You have won the last three projects and I congratulate you with all my heart... In my opinion, it doesn't look good in a civil appeal that you win everything...". We will address this correspondence and Shachar's testimony in this context below. We will only note that Shahar made a connection between this email correspondence – in which he asked Zeiger and Gilad that Harel allow Levi to win the projects in a civil appeal – and Harel's agreement to give up Levi on the Oranim project shortly afterwards (p. 2866, paras. 16-32; see the reference to the Oranim project at paras. 21-22).
- On August 30, 2011, the project approached Elta to finance a request to expedite the procurement of the contents for the Oranim project (N/29). Subsequently, there was internal correspondence between Maman's people and between them and the ELTA people. The correspondence revealed that at that time, Maman's people had only Harel's proposal for the project. In the correspondence, various claims were raised by Shekanevsky against ELTA about the fact that Maman did not participate in the proceedings at an earlier stage and various deficiencies in the procurement process. At the end of the day, Leshem, Maman's procurement manager, instructed Maman's personnel, including Laskanevsky, that it is possible to consider an exemption from a tender in the circumstances of the matter, but that pricing must be conducted between the suppliers (N/29, ibid.). A few days later, Maman signed a reasoning form for release from a tender, with reference to the short timetable, and the fact that Shaknevsky would conduct a competition between suppliers (P/144, N/54; the form was sent to Shakanevsky on September 11, 2011 - N/93, see also: N/94 (which includes certain differences)).
- Summary so far: At the beginning of September 2011, Maman decided to conduct a pricing between suppliers for the purchase of the contents of the equipment for the Oranim project. Prior to that, it was Harel who took action on the matter vis-à-vis the project.
The Oranim Police Department and the Proposal Coordination Arrangement
- On September 4, 2011 and September 5, 2011, Shkanevsky approached a number of suppliers – including Wee, Matrix and EMET – with a request to receive price quotes for the contents of the Oranim project. To the inquiry, Shkanevsky attached an SOW document that included the specifications of the required equipment. The contents of the equipment consisted of 4 different types of servers, each type according to the specified specifications (SOW) and in the required quantity (see: Shkanevsky, p. 915, paras. 5-6, p. 916, paras. 4-6; see also: N/266 and N/338 (the lower correspondence in the two exhibits) contact withWii dated September 4, 2011 and a follow-up request for clarification of the contents dated September 5, 2011; N/95 - a request to Matrix dated September 4, 2011 and a follow-up request with the specifications dated September 5, 2011 (and see another clarification request on the last page of N/95); N/82 - a request to A.M.T. dated September 5, 2011; see Also: P/430, P/131 Letter toHarel dated September 13, 2011; from the testimony of Shkanevsky it emerged that he contacted Harel only later since Harel had already submitted a proposal for the project in the past, p. 1091, paras. 11-21).
- From September 5, 2011 to September 7, 2011, that is, after receiving the CBM and the specifications, Wei acted to promote the submission of its proposal to the Oranim Police Department. This included contacting IBM in connection with Yad's acceptance of the project, received comments from IBM regarding the configuration, and prepared a draft proposal for submission to a civil appeal (see email correspondence from September 7, 2011 to September 5, 2011: N/266, N/338, N/265, N/337 (Shahar forwards the CBM and specifications to Labid from IBM); N/339, N/340 (Oshri forwards to Shachar, in response to Shahar's inquiry, a price table of Wii to submit to the customer); N/334, N/267, N/341 (IBM's Hershkovitz instructs Oshri on how to request the bid when the time comes, as ISI, and conveys IBM's comments regarding the configuration following which correspondence between Oshri and Shahar is made)).
Oshri was very involved on Wee's part in the stages after the publication of the Bulletin. Oshri noted that it was important to him that the value of the project would be won (P/215, S. 285). Oshri was the one who was in contact with IBM at these stages, and it was he who handled the conduct with IBM for the purpose of receiving it (P/215, paras. 262-264, paras. 268). Oshri was the one who prepared and forwarded to Shachar the draft of Wee's proposal to Balam Oranim (P/340; Wie's prices at this stage were based on a discount of 53.2% of IBM's price list; the draft proposal amounted to about $1.2 million, in a manner that does not correspond to what was required by Balam and what was submitted at the end, and which also reflects Wie's claim that it was involved in the early stages of the project).