The picture obtained is that the accuser's position that Shohat's offer on behalf of Matrix amounted to $449,440 (incorporating the emails sent by Shochat to Schnevsky: P/450 and P/132), although it makes sense and although it is consistent with certain documents, is not supported by the testimony of anyone, including the testimony of any of the civil appeals, or even in the civil appeal documents from a real time. In fact, none of the witnesses testified that Matrix's offer amounted to $449,440 according to the accuser's method. This raises a question mark.
- What is the conclusion that emerges from all of the above?
- The accuser's position that Shohat agreed to submit the Matrix offer at a price that was consistent with Shahar's and that he did so in practice is supported by some of the evidence. In particular, in the testimony of Shachar and the fact that Shohat submitted the Matrix proposal (P/132) while copying significant parts of the coordination notice sent to him by Shachar (P/146). The very copy supports the incriminating thesis that Shohat agreed to the coordination. It seems that the accuser's position expresses the more likely possibility. But at the same time, question marks also arose that were not removed. In view of these, it is not possible to rule out a possible scenario whereby Shohat submitted the Matrix bid to Balam Oranim for the sum of $395,860 and not for the sum of $449,440 as requested by Shachar, i.e., that he submitted a bid whose price was significantly lower than the price requested by Shachar (and without laying the groundwork for Shohat to know the price of Wee's intended bid). This also raises the possibility that Shochat did so because he did not agree to Shachar's request to coordinate despite Shachar's request (and not in violation of consent). (Indeed, the execution of the arrangement is not precluded on the basis of the offense of the restrictive arrangement, but there may be non-performance that can serve as evidence that the arrangement was not made le-khatḥila, see and compare: Geva in paragraph 300 of the judgment; even though Shochat himself denied that he copied Shahar's coordination notice, this does not negate the examination of an alternative scenario that could cast doubt on the accuser's version, for example, criminal appeal 511/21 Anonymous v. State of Israel at paragraph 59 of the judgment (February 22, 2022)).
- In view of the aforementioned rule, even if this is a borderline case, there remains reasonable doubt as to Shohat's consent to the coordination, and Shohat should be acquitted, and in any case Matrix as well, of the offenses attributed to them in connection with the Oranim Police Department, which is the first part of the indictment in question.
- Fraudulent receipt of a thing - Note: Shochet and Matrix were also charged with receiving something fraudulently under aggravated circumstances. This is on the basis of the misrepresentation of the failure to disclose the coordination. When it was found that Shohat and Matrix should be acquitted of the offense of a restrictive arrangement in the Oranim Arrangements, the basis for the offense of fraudulent receipt as attributed was also dropped. At the same time, it should be noted that I cannot accept Shohat's argument that even if he was a party to a restrictive arrangement, there would have been no reason to convict him of receiving something fraudulently because he did not receive any benefit, and that Maman's "assumption" is not sufficient in this regard (and see the discussion in paragraphs 24-32 above, and in particular in paragraph 29; see also the Balva case at paragraph 35, p. 26 (conviction of fraudulent receipt even of those who did not win the tender but were involved in the fraudulent representation); Criminal Appeal 8080/12 State of Israel v. Olmert at paragraphs 124 and 130 of the judgment (September 28, 2016) (the mere disruption of discretion formulates an acceptance); Ben Dror (District) at paragraphs 33 (general), 603-608, 671-673 and 690 (seventh charge), 803-807, 883 (tenth charge); 930-933, 968 (twelfth charge); In this context, I accept the position expressed in the Ben Dror (District) case over the position expressed in criminal case (Jerusalem District) 24177-02-17 State of Israel v. Belfer in paragraphs 292-296 of the judgment (September 9, 2019)). Even the claim of flaws in the competitive process, in that Shakanevsky allowed Levi and Harel to submit bids the day after Matrix's bid, does not change or justify improper coordination behind Maman's back and civil appeal and misrepresentation against this background.
Part Two of the Eleventh Charge: The Online Pricing
- After the proposals were submitted to the Oranim Division, Shekanevsky invited the suppliers offering to participate in online bidding (P/101 - summons to Weschnitzer (A.M.T.) and Shahar (Wi); P/614 - Summons to the slaughterer (Matrix) in the lower correspondence).
- Shkanevsky testified that the tool of online pricing is intended to create more aggressive competition in order to try to improve the terms of the transaction and to achieve savings and a cheaper solution for a civil appeal (p. 918, s. 20 - p. 919, s. 3). This was also evident from the testimony of Peretz, who testified that he was a proponent of online pricing as a tool for reducing procurement costs (p. 1615, para. 14 - p. 1616, para. 5).
- The online pricing is set for September 15, 2011 at 09:30 (N/101). It began at approximately 09:30 and ended at approximately 10:30 (e.g., P/614, a request from a slaughterer at approximately 09:30 a.m. who is unable to connect). Representatives of the four suppliers who submitted bids at the balam stage participated in the bidding: Shahar, Gilad, Wischnitzer and Shohat. The opening price for the bidding was set at $390,000 (i.e., close to the sum of Wei's offer, which was the lowest bid at the stage of the Battle of the Bulge, P/207 (at the bottom), p. 2264, paras. 18-21). As appears from the evidence, at the time of the pricing, there were many telephone conversations between Shachar and the other participants in the pricing (e.g., P/587). As part of the online pricing, the suppliers submitted various price quotes, the prices of which were declining.
- At the end of the pricing process, Wei's bid of $362,400 was the cheapest bid, and it won the online bid (P/102, P/142). On September 22, 2011, Maman issued an order for an essay for the aforesaid sum (P/124; prior to that, on September 16, 2011, Wei received a special from IBM, according to a request dated September 14, 2011 (N/214)).
- As stated above, in the second part of the eleventh indictment, which is currently being discussed, it was attributed to Shachar and Wee, Gilad and Harel, and Wischnitzer and A.M.T., Shochat and Matrix that they were parties to a restrictive arrangement whereby Wei would win the online pricing when Harel, EMET and Matrix would submit final bids higher than Wee's in order to enable Wei to win the online pricing.
- The accuser relied mainly on the following evidence: Shachar's testimony in particular regarding the content of the conversations he had with the other participants during the online pricing; telephone call outputs received from Cellcom and data outputs in relation to the online pricing produced from the Sourcing Vision (SV) system that was used to edit the online pricing (the online pricing outputs) and the alleged image that emerges from the combination of the outputs (Appendix C to the accuser's summaries); as well as various statements made by Shohat in his interrogations with the Authority and in his testimony. which support her claim in Meyuhas.
- A note regarding the admissibility of the online pricing outputs – the accuser submitted during the trial the online pricing outputs as they were received from Shkanevsky, who extracted them through the SV system , and as they were also received directly from the SV system by Maria Ben Shmueli (Ben Shmueli), the CEO of the company that supplied the system for civil appeal (P/134 - P/141; P/204 - P/211).
The outputs refer to the bidding participants, the dates of the approval of the participants and entry into the pricing system, the description of the chronological process of the pricing, including the bids submitted by the participants, actions taken by the bidder during the bidding, the messages he sent to the participants (e.g., opening the possibility for the participant to see the bid before him; opening the possibility to see the cost of the leading bid, etc.); for additional messages sent during the pricing; Screenshots showing what each participant saw during the pricing and more.