To this must be added the testimony of Leshem, Peretz's manager. We saw above that it was Shem who instructed Shkanevsky and Peretz that IBM's "suppliers must compete" (N/29, see paragraph 636 above). Leshem testified that he wanted to maintain competition between the suppliers, that the fact that one of the suppliers (A.M.T.) said that he did not receive a special price from IBM does not mean that another supplier will not receive a suitable price, and that in the end everything depends on the profitability goal of each supplier, so it is possible that a certain supplier will receive the price he receives will be sufficient to submit a competitive bid because he will be satisfied with a lower profitability (p. 2186, paras. 28-32, p. 2187, s. 21-28, p. 2188, s. 7-12). This testimony also shows that Maman's people wanted to hold a real competition.
Thus, even with regard to Balam Oranim, it was clear from the testimonies that Maman sought to conduct truth-pricing, in order to maximize the advantages of the competition, in order to incentivize the suppliers to give genuine and beneficial offers, and not in order to receive coordinated false offers. The coordination of the proposals thwarted the attempt to hold a competition. He even gave Maman's people a false representation that the suppliers were acting independently in a manner that distorted the picture before them and prevented the possibility of examining the various positions in relation to the correct way to privatize and engage on the basis of independent truthful conduct.
- Claims of defects in the procurement process - Wee and Harel also raised claims of defects in the procurement process. Wei argued that this is a procurement proceeding that requires a tender or an exemption from a tender in view of the amount of the purchase. However, as part of the evidence, an exemption form from a tender was submitted with the signature of the relevant parties in ELTA (the form was titled "Reason for Release from a Tender", P/133, N/54; See also the caption in email N/93; and N/94). Wei and Harel also raised claims regarding the approval of a single supplier in the Oranim project. Harel argued that a single supplier's approval was not issued and that it was the desire to refrain from issuing such a certificate that led to the problematic pricing (paragraph 623 of Harel's summaries). Wei argued that in the procurement file there was a single supplier's approval that was not transferred to the defense, on the basis of an output relating to the procurement file in the project, which included a reference to an "updated" single supplier form (N/437, at p. 8, p. 6610, s. 30 - p. 6611, s. 4). This matter was not fully clarified. Real-time documents support that a single vendor approval has not been issued for the project. When the project approached the funder to advance the procurement process, Shaknevsky noted that although the file contained only a proposal by Harel, there was no single supplier form (N/29, which implies that insofar as the project wanted to promote an engagement with Harel, it had to act to obtain a single supplier's approval; see also N/94, which relates to the failure to attach a single supplier form). Either way, even assuming that the project has been given a single supplier approval (to any of the suppliers) and that it has not been located, this will not change it. As we have seen above, the approval of a single supplier for the project does not exclude the possibility of pricing by procurement and does not make the pricing in Balam such that it is done on the face of it (see paragraphs 367-385 above). Nor do the alleged defects in the procurement process or in terms of tenders laws justify coordination or legitimize it (see, in paragraph 339 above).
- Therefore, the claims that Wei's win was guaranteed in advance, or that the competition in Balam Oranim was ostensibly dismissive. Maman asked to conduct a pricing in order to obtain the best real offers.
- The argument regarding Gilad – Harel claimed, similar to the claims she raised in previous indictments, that to the extent that it is determined that Gilad waived the deal in the Oranim project to Shahar, he acted contrary to Harel's interest and harmed her, and that he acted in his personal interest and in order to give Shahar the feeling that Gilad was making concessions for him (for example, paragraphs 621, 654 of Harel's summaries). Indeed, the offer that Gilad submitted to Balam Oranim was higher than Wee's offer (in accordance with the coordination), so Wee's offer was the cheapest (and later on it was Wei who accepted the invitation). However, as stated above, there is no room to examine Gilad's conduct at Balam Oranim in isolation from the overall picture, in isolation 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 (see similarly at paragraph 395 above). In our case, consideration should also be given to the fact that the coordination of the Oranim case was made after Shachar contacted Zeiger and Gilad, in which he complained that Harel was "not allowed to win anything" (P/388) and as part of the mutual improper conduct between the companies (see paragraphs 635 and 667 above; And also in light of the fear of competition as long as Harel continues to win everything, as Shahar says). 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 is insufficient).
Oshri's involvement as a party to the settlement
- An examination of the evidence shows that it has been proven beyond a reasonable doubt that Oshri was a party to the restrictive arrangement in the Oranim Arrangement.
- We saw above that Oshri was very involved on Wee's part in the stages after the publication of the Balam, because he himself noted that it was important to him that Wei would win the project, that he was personally in contact with IBM and handled the receipt by hand, according to him, that Oshri was aware of the entire conduct with Shekanevsky, and that it was Oshri who prepared Wee's proposal for the project for Shahar in order to submit it to the financier (see paragraph 639 above).
- At the same time, Wei worked – through Shachar and Schiffer – to coordinate with the other suppliers so that they would submit bids at the prices specified by Wee and that would be higher than the price of Wee's intended offer. As we shall see below, there can be no doubt that Oshri was aware of the coordination that was taking place, because he acted with knowledge of it and was a party to it.
- On September 7, 2011 – in parallel with Oshri's activity with IBM for the project, and after Oshri himself prepared a draft of Wee's proposal – Oshri wrote to Schiffer, regarding the Oranim Police Department: "Elta I am dealing with Shachar, McHavan there all the prices and the work with IBM as well" (N/344). Within a short time, Schiffer wrote to Oshri in a direct response to this, and informed him that "Great, I spoke today with Wischnitzer 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).
- The accuser sought to learn from Oshri's words, who wrote that he "combined" the prices "also" vis-à-vis IBM, that Oshri acted in a way of "combine", a ruse, and this also vis-à-vis the competitors, and that he was the one who instructed his subordinates, Schiffer and Shahar, to make the arrangement. Indeed, the language used by Oshri and the accepted meaning of the phrase "combine" can support the accuser's claims. In particular, in light of Oshri's active involvement in Wee's moves at the Oranim Naval Academy. At the same time, Oshri testified that he used this phrase, for a combination, in connection with the preparation of the excel tables, to make the combination of prices and configurations, for the purpose of submitting a price quote, which he dealt with more than once and which some of the salespeople had difficulty with (p. 4554, paras. 17-22; p. 5047, paras. 23-24, an example of the use of such a term was also presented in the internal correspondence of Wie that is not related to the charges, N/345). This matter may raise a question mark.
- However, even ignoring the words written by Oshri in response, the words that Schiffer wrote to him in response are sufficient to remove any doubt as to Oshri's awareness of the improper arrangement in real time. Schifer's words about "Closing of the competition"Vis-à-vis other clear and unequivocal suppliers. Schiffer informed Oshri of an agreement made between Wee and EMET and Harel so that the competing suppliers would not create a competitive problem, that is, they would not submit bids at a price lower than Wee's bid and could jeopardize its win or harm its profitability. This is the clear meaning of talking to the competitors and"Closing the Corner of the Competition" in front of them. This is also evident from the concrete price coordination correspondence that Shahar sent to the other suppliers a few days later (P/147, P/148, and P/146, even though Oshri would not have written as a party to these correspondences of the implementation of the arrangement). This is also evident from Shachar's testimony that "Closed the corner against Harel...". When Shahar was presented with the email correspondence in question, he testified that "Closing the Corner" by talking to Gilad Maharel that he would not submit an offer at a price lower than the price quoted by Shachar (see paragraph 644644 above). This is the simple, obvious and clear understanding of things.
- It therefore appears that Oshri is the senior manager at Wii and he sets the tone for it, was aware of the arrangement in real time. Beyond that, this is an arrangement that concerns a project in which Oshri was personally and actively involved; A project that was important to Oshri; When Oshri acted to promote Wei's moves in the project and the proposal she submitted with his knowledge of the arrangement and in accordance with it, and in a manner that attests to his agreement to it. In this situation, there is a solid basis for the conviction of Oshri as a party to the arrangement (see and compare: the Ben Dror (District) case at paragraphs 660-664; the Borowitz case at paragraphs 76).
- In his interrogation with the Authority and in his testimony, Oshri tried to minimize the meaning of what Shifer wrote to him in real time regarding "closing the corner of the competition" and claimed that he understood them differently. A central element of Oshri's arguments in this context was that Wee's win was assured, that Wee was the one who worked with the project, received priority from IBM, and was in contact with the customer on the matter (p. 4548, paras. 16-18); that he knew that the other suppliers le-khatḥila had no chance (e.g., P/215, S. 369, S. 299 of the WI summaries); and that there was no element of competition here at all (e.g., P/215, paras. 374-375). Oshri did not deny that he had received Schiffer's e-mail and that he had read it (p. 5052, paras. 7-10). However, since Wei's acquittal was assured – this is his version – he did not attribute any importance to what Shiffer wrote and the matters did not interest him at all (P/4557, paras. 20-23, P/215, paras. 261-269, paras. 368-369) and that he believed that the matter was "superfluous" (P/215, paras. 210, ibid. in relation to P/147). Oshri testified that he understood that other suppliers had approached Levi with a request to purchase the equipment for the project from her and that Shahar or Shifer had given them a procurement offer on the basis of which the other suppliers would submit their bids for the project (p. 4557, s. 20 - p. 4558, s. 2; s. 15-16, p. 5049, s. 12-14); Oshri further testified that he did not attribute importance to the matter, since as far as he was concerned, at most, it was Harel that would win the order and sell it to Elta, and for this purpose it would purchase the equipment from Vi (p. 4558, paras. 18-21, p. 4559, paras. 8-14).
- This version of Oshri should be rejected. His testimony on this matter was not reliable. It is inconsistent with the evidence, with the conduct, and with the clear words that Schiffer wrote to him in real time that he had "closed the corner of the competition" and that "there will be no problem."
As stated above, Oshri's version relies to a large extent on the claim that Wei's win was guaranteed and that the other suppliers had no chance, and therefore – this is the claim – he did not attach importance to the things that Schiffer wrote to him. We have seen above that these arguments of Wei should not be accepted, that it has not been proven that Vae acted in a real way vis-à-vis the project prior to the issuance of the Balam and that it was actually Harel, whose initial foothold in the project was (paragraphs 666-667 above). It is possible that this is enough to undermine the basis of Oshri as a whole.