The accuser argued that Shohat's attempt to qualify his words and to rely on the words "maybe" that he added to the content of the conversations should not be accepted, and that this does not change the essence of the words. According to her, these amount to gratitude (see also Shohat's extreme answer – extreme at least for the time being (2023) – because it is possible that they also spoke (in a 2011 draft) about attacking Iran, p. 6917, paras. 4-7). It is possible that in the circumstances of the case, there is substance to the accuser's argument that the qualification added by Shochat does not change the substance of the matter.
According to the accuser, in these exchanges described by Shochat – statements not to slaughter a price, talk about who participates, who lowers prices, etc. – constitutes a violation of a restrictive arrangement in the circumstances of the case.
We noted above that the phone calls between participants during online pricing can create significant difficulty. The content of the conversations, as it emerges from Shohat's remarks in the interrogation and in the testimony surrounding the occurrence of the pricing proceeding, adds to this difficulty (this kind of dialogue between competitors in a competitive proceeding, which includes the transfer of information and even beyond that, can amount to a restrictive arrangement, see and compare: The Cohen (District) case at paragraph 317; Criminal Case (Jerusalem District) 209/96 State of Israel v. Ahlich Yaakov in Tax Appeal at paragraphs 94-95 (August 4, 2002); and see also in general regarding the practice of transferring information between competitors: C.A. 43129-03-10 Bank Hapoalim in Tax Appeal v. Antitrust Commissioner at paragraph 20 (June 15, 2014)). However, as stated above, this is not the arrangement attributed to the defendants in the part now under discussion. The defendants were attributed to being a party to a restrictive arrangement whereby the other participants would submit final bids higher than Wee's in order to enable Wei to win the online bidding. In Shohat's aforementioned words – despite the difficulty that arises from them – there is no agreement on the part of Matrix to submit a high bid or an agreement to submit a bid at a price that will be higher than the price of Wee's bid. Shochat reiterated in his interrogation and testimony that he had not reached any agreement with Shachar and that he had not agreed to refrain from submitting a low bid on behalf of Matrix (P/240, paras. 590-594; paras. 417, paras. 423, paras. 532-533; p. 6771, paras. 6-11, p. 6783, paras. 8-12; see also his words at p. 6919, paras. 6-13 that he did not express agreement with Shahar and claimed that he waved him off).
- Summary of a point: the evidence supports the difficult conduct of the bidding participants. This is evident from the large number of conversations during the pricing and close to the submission of the proposals. This is especially so when one takes into account that it has been proven that at the BAM stage, an arrangement was made whereby Harel and A.M.T. would submit bids higher than Wee's offer (and there was still doubt regarding Shochat and Matrix) in order to allow Levi to win the WM, in a manner that also supports the accuser's claim for an arrangement that was also made at the online pricing stage. However, doubt remains regarding the arrangement at the online pricing stage and its content. Shahar's testimony was inconsistent and not sufficiently clear as to the content of the privileged arrangement. No direct objective evidence was presented with respect to the consent itself and its content. The rest of the evidence can also be reconciled with an alternative scenario whereby Shahar approached, repeatedly, to the other participants in order not to lower the prices of the proposals, without proof beyond a reasonable doubt that there was an agreement and that an arrangement or understanding was reached, while the other participants even lowered the prices of the proposals they actually submitted. In this situation, the evidence does not necessarily lead to a clear and necessary conclusion as to the guilt of the defendants. It is not possible to rule out an alternative scenario according to which the arrangement attributed at the online pricing stage was not formulated. Indeed, Shachar's actions – as appears from his own words – indicate "thoughts of offense" and even suggestions for a settlement and conversations intended to bring the other participants to act in coordination with him (see and compare: The Geva case at paragraph 299). However, I was not convinced at the required level that these were formulated into an agreement and arrangement as attributed in the indictment. In view of the question marks that arise from Shachar's words regarding the agreement itself and its content, the conclusion is also correct with regard to Harel and EMET, even though unlike Shochat and Gilad Wischnitzer, they were not brought to testify.
- In view of the aforementioned rule – since there remains reasonable doubt as to the very nature of the privileged arrangement, its content, and the consent of the other participants to it, all the defendants should be acquitted of the offenses attributed to them in connection with the online pricing in the Oranim project, which is the second part of the indictment in question.
Reference to Additional Claims Raised in Connection with the Eleventh Charge - Project Oranim
- The allegations of IBM's involvement in the Oranim project – the defendants claimed that IBM, through Labid, knew and was involved in the coordination between the suppliers and in the agreement whereby it was Wei that would win the Oranim project (e.g., paragraph 150 of Shohat's summaries; I am not required here to address the argument in its broad form that IBM was involved and took a direct part in the coordination as a whole, a claim that no concrete infrastructure was laid for it; for a general discussion of the claims raised in connection with IBM, see paragraph 1049 onwards below).
- With regard to the Oranim project, the focus of the argument is a certain email message – N/99. It should be recalled: On the afternoon of September 13, 2011, even before Shahar sent the corresponding emails to the other suppliers, Gilad sent Shahar an email to which he attached the draft of Harel's proposal to the Oranim Naval Command (P/453), and Shahar forwarded the message and its draft proposal to Lavid from IBM (N/99, see paragraph 648 above; two days earlier, Shkanevsky had contacted Lavid with a request to send him the amended specifications that Shahar had sent to Lavid. and Shachar replied to Lavid that he would not send, N/86).
- On the basis of the aforesaid, it was claimed that Lavid knew about the coordination of the proposals between the suppliers in the Oranim project and that he was involved in it (and Shochat sought to support his claim for selective enforcement).
- These claims must be rejected.
Shahar did not know how to explain in his main testimony why he had sent Gilad's draft proposal to Lavid (p. 2936, paras. 7-15; he also said the same in his interrogation P/557(5), paras. 1229-1234; see also para. 638 of Harel's summaries). In any case, he did not claim the involvement of Lavid or IBM in the coordination, and that is what the email he sent to Lavid was for. In this state of affairs, we should not accept subtle answers that he gave later, with sweeping approval of what the defense offered him, and in a clear attempt to divert the fire to other places, as if he had forwarded the offer to Lavid because Lavid was involved in the "dynamic" and by implication of the coordination, that Lavid played a "central role" in the matter or that he was the one who "managed the transaction" (p. 3574, paras. 15 - p. 3575, S. 12, p. 3068, S. 11-18, S. 3434, S. 15 - P. 3435, S. 1).