The arrangement: "Closing the corner of the competition" so that Value will win
- At the same time, on 6 September 2011 and 7 September 2011, telephone conversations took place between Shachar and Harel's people: Zeiger and Gilad (P/587 - 6 September 2011, 18:56 (Zeiger); 7 September 2011, 09:14, 11:35 (Gilad)).
- On September 7, 2011, an e-mail correspondence was made between Oshri and Schiffer, who was for a short period of time a sales manager at Bowie (see paragraph 53 above).
- Schiffer sent Oshri a list of projects in treatment. The list also includes an ELTA project under the responsibility of Shahar (N/342, Schiffer incorrectly listed the name: Elta-Firefighter). In response, Oshri wrote to Schiffer as follows: "Elta I deal with Shachar, McCambian puts all the prices and the work with Yibam as well" (N/344, underline added, later in the email Oshri referred to the list that Schiffer sent and asked about additional deals).
- After a few minutes and in direct response to this, Shifer informed Oshri of an agreement that had been made between Wei and Weischnitzer of EMET and Gilad of Harel (via Shahar) so that they would not create a competitive problem for Lewis. This is how Schiffer wrote to Oshri: "Excellent, I spoke with Wischnitzer today to close the corner of the competition, there will be no problem with him. And Shahar closed the corner against Harel ..." (P/504, P/283, N/346, underline added, later in the email he updates that they will later know whether the tender will be online (online) or in envelopes (written proposals)). These things speak for themselves. Schiffer informed Oshri – regarding the project in which Oshri is personally involved – regarding an agreement with competing suppliers so that they would allow Wii to win. Moreover, even from the evidence that will be presented below regarding the conduct in the future, it clearly emerges that this is an agreement whereby the other suppliers will submit higher price quotes than the offer of Vi K-Value will win Balam Oranim. Oshri's claims that he did not understand the matter, that he thought otherwise, and that he was not a party to a restrictive arrangement, will be addressed later. In the introduction of the latter, we note that they should not be accepted.
- Shahar testified that he was sure that he (Shahar) was the one who "closed the corner with Harel" on behalf of Wei and that in order to do so he told Gilad not to submit an offer at a price lower than a certain price (p. 2828, paras. 1-9; This is in continuation of what was presented to him in his interrogation, P/557(5), paras. 489-501; Although Shachar did not remember the words specifically; Shachar's testimony can be integrated with the conversations between him and Gilad Maharel earlier that day, see paragraph 640 above; Although the picture does not change even if the call is taken away from P/587).
- On September 11, 2011, Shkanevsky contacted the suppliers and urged them to submit the bids by September 13, 2011, otherwise a summons for pricing would not be sent (P/96 - Appeals to Matrix (Shochat and Nachshon Pinko (Pinko)); N/82 - Appeals to A.M.T. (Wishnitzer); Vishnitzer replied that he had not received special prices for a civil appeal from IBM and therefore would not be able to participate (ibid.); In response, Peretz tried to incentivize Vishnitzer to submit a bid and participate, noting that "there may be surprises" and that it was the civil appeal that "determined its suppliers"" and not the manufacturer (P/194); We will address the arguments on the basis of this conduct separately). At the same time, Shekanevsky asked Lavid, from IBM, to send him the amended specifications that Shahar had sent to Lavid (P/86, Shahar replied to Lavid that he would not send).
Planning the details of the coordination for the implementation of the arrangement
- Let us now move on to confirm what happened on September 13, 2011, during which actions were also taken to promote the implementation of the coordination arrangement.
- On the afternoon of September 13, 2011, Shochat of Matrix sent Schneevsky an e-mail message in which, according to its headline, "Price Quote for 3650 Servers" at a price of $8,155 per unit (N/450, N/450(1)). The arguments of the parties in this regard will be discussed below. There is no dispute that the email referred only to one of the four types of servers for which a price quote was initially requested.
- Still at noon today, apparently a little later, Gilad Maharel sent Shahar an e-mail with a document attached to what was supposed to be a draft of Harel's proposal to the Oranim Brigade (P/433). The offer amounts to a total of $385,074 (see also N/99 which is more readable). The amount of the proposal reflects a tripling of Harel's preliminary proposal submitted to the project a few months earlier, even before the publication of the Tender Tender (P/127) in a manner that is consistent with the fact that the proposal now referred to six units of each category and not to the two units that the preliminary proposal referred to (compare P/127 vs. P/433, both the preliminary proposal, and the draft proposal that Gilad has just sent). Bearing the date 29.3.11). The evidence shows that an offer for the said sum – $385,074 – was not sent and was not submitted to a civil appeal (see also paragraphs 5 of P/126). Shachar forwarded the email message Gilad had sent him and the draft of Harel's proposal returned to IBM Levid (N/99). The reason for this was not clarified.
- In the afternoon, Shachar sent Shifer Wee's intended bid to the Oranim Brigade for a total of $388,705 (P/505, later Wei submitted this proposal to IAI, P/133).
- A short time later, Schiffer sent Shahar an e-mail containing a summary of the coordinated proposals to be submitted to Elta at the Oranim Communications Division (P/145). In fact, this is an email that is concerned with planning the coordinated proposals. Attached to the announcement was a file called "ELTA Bids Summary", which contains a table with the prices of the bids that the competing suppliers will be asked to submit to ELTA. These are the same suppliers from whom Maman asked to submit price quotes to the Oranim Medical Center. This is the table that came with the email:
Shahar testified that the prices in the table are the prices of the bids that each of the suppliers must submit to Elta (p. 2856, paras. 12-13; p. 2857, paras. 1-2, the price listed next to Matrix is the price that Matrix is supposed to submit). Shahar testified that these were the prices at which Harel, AMET AND MATRIX would be asked to submit their bids to Elta (p. 2848, paras. 19-24; see also p. 2850, paras. 1-2, where he testified that Schiffer was asking him here to contact Harel and Matrix to submit bids at the prices written in the table). The email sent by Schiffer was also accompanied by a file containing a detailed table of Matrix's proposal in the sum of $449,440 (see also Exhibit 505).
- It should be noted that from the planning of the bid prices – and as we will see below this was also the case in practice – Wei's bid price ($388,705) is the cheapest of the other planned bids. However, this price of the Wee is about $3,000 higher than the price of Harel's draft proposal for the project ($385,074, P/433, based on Harel's proposal for the project in the past – P/127). Harel's intended bid at the NCAA stage ($399,402) is also higher than the draft proposal that Gilad sent to Shahar at about $14,000 (P/433, see also P/127).
- Indeed, a few hours later, on the night of September 13, 2011, exactly as planned, Shachar sent each of the suppliers an email with a detailed proposal for him to submit to the funder, the price of which corresponds to the above planning table:
Matrix - (P/146, at 10:21 p.m.) An email to Shochat in which Shachar wrote "attached a price quote to finance" and attached a detailed offer for all the components of the contents, the four types of servers, for a total of $449,440 .