The bottom line: In view of all of the above, and also in view of the difficulties that have arisen, I do not believe that it is possible to base on the testimony of Shachar and on the coordination notice that he sent (P/146) alone, at the level required in criminal cases, a determination as to Shohat's consent to coordination without additional external support for this and with sufficient strength in relation to the understanding with Shohat and his consent.
- The accuser further claimed that Shachar acted to make three arrangements together – vis-à-vis Gilad and Harel, vis-à-vis Wischnitzer and A.M.T., and vis-à-vis Shochat and Matrix – that all the coordination notices were sent to all three in close proximity (P/146, P/147, P/148) as part of a single plan (P/145) and that Shahar would not have sent the coordination notice to Shochat (P/146) if Shochat had not agreed to it earlier. It was further argued that just as the arrangements with Harel and EMET were agreed upon in advance (as appears from P/504 – "closing the corner of the competition") and the prices of the concrete bids were sent only later, so too was done with Matrix. These arguments, although the logic underlying them can be understood, were not supported by concrete evidence with regard to consent on the part of Shochat and Matrix and in a manner that could establish a conclusion regarding Shohat's consent from dealing with other suppliers (in relation to them and in relation to the consent that came from them, additional and clear evidence was presented, including from dates prior to September 13, 2011, as discussed above; such evidence was not brought in connection with Shohat).
- The identity between Shohat's second e-mail (P/132) and Shachar's coordination message (P/146) – in this context, the accuser points to the significant identity between Shachar's coordination message (P/146) and Shohat's second e-mail, which was sent to Schneevsky shortly afterwards and included a Matrix proposal (P/132). As stated above, the comparison of the documents leaves no room for doubt that Shohat saw Shachar's coordination notice and that he copied significant parts of it into the Matrix proposal that he submitted. We have seen above that Shohat's version that he did not see the coordination notice (P/146) and that he acted on the basis of IBM should be rejected. Since his version was found to be unreliable, and since he copied parts of the proposal that Shahar sent him, this would act in accordance with Shohat's duty and support the accuser's position (the accuser also referred to the telephone conversation from the afternoon of that day, 13 September 2011; in the absence of direct evidence of the content of the conversation, the additional weight of the latter is limited).
- It appears that the accuser finds main support for the claim that Shohat agreed to the coordination by stating that according to her, in practice, Shohat submitted a price quote in the amount of $449,440, in a manner consistent with Shahar's notice of coordination (P/146). As explained at length above, the accuser's position is that Matrix's offer is not merely P/132 where a total of $395,860 was stated, but rather a combination of Shohat's first email (P/450) together with Shohat's second email (P/132). Shohat, for his part, insisted in his testimony that the total amount of the Matrix proposal that he submitted to Laskhanevsky was $395,860, as stated in the concluding line of P/132 (e.g., p. 6751, paras. 6-13; p. 6888, paras. 21-22; p. 6889, s. 20; p. 6890, paras. 11-12; the two pillars underlying the accuser's claim: P/450 and P/132 were not presented to Shochat in his interrogation with the Authority; however, Perhaps some support for Shohat's version can be found in his statement in the Authority's interrogation that in the online bidding he reduced about 6-7% of the price he submitted to IAI, in a manner that is roughly consistent with the submission of a bid in the amount of $395,860, and is inconsistent with the submission of a bid in the amount of $449,440, see P/240, paras. 342-348).
An analysis and examination of the documents – P/450, P/146 and P/132 – can certainly support the accuser's position that Shohat submitted an overall offer in the sum of $449,440 and hence that he agreed to coordinate with Shachar and even acted in accordance with the agreement. The numerical adjustment that we discussed – a reduction of the sum of $53,580, which relates to the server component to which Shohat's first email message (N/450) referred – suggests that this may be the most plausible scenario in the circumstances of the case.