(For the sake of completeness: On March 29, 2011, a few months after the order of the central storage system from Mevi, and about six months before the purchase of the subject of the indictment, Shachar submitted to Lavi a price quote for the expansion of a storage system for Elaop, N/123; no real details were clarified regarding this proposal, beyond Lavi's general reference to it in her testimony, pp. 1356-1358; the defendants did not raise any real arguments on the basis of this proposal in their summaries).
- In summary, at the end of 2010, Wei sold Elbit a NetApp storage system about nine months before the procurement proceeding at the center of the indictment.
The Procurement Proceeding Subject of the Indictment - September 2011
- Let us now turn to the description of the factual picture that emerged from the evidence in relation to the procurement proceeding from September 2011, on which the twelfth indictment revolts, and the alleged coordination of the proposals in relation to this procurement.
- In the procurement proceeding in question, Alop sought to purchase various components manufactured by NetApp for the expansion of a storage system. The procurement contents included: a specific disk rack, 12 disks, and 50 memory components for expanding the use of virtual servers.
- Pinchas Dantes (Dantes) was an employee of the Alop factory and served as an information systems manager in Alop-Rehovot (B/123).
- On September 4, 2011, Dantes filed a demand in Alop's internal system for the purchase of the aforementioned contents (P/165; Lavi, p. 1290, paras. 7-8; p. 1370, paras. 25-26). The demand stated the details of the contents to be purchased, as well as price estimates. Lavi testified that the procurement demand was transferred to her as the person responsible for the procurement of IT infrastructure and technologies in Alop in order to examine the need and advance the procurement process (p. 1290, s. 7 - p. 1291, s. 26).
Prior to the establishment of the procurement demand for the Alop system, Shahar submitted to Dantes a price quote of Wii for the expansion of an existing storage system and memory components for the servers, for a total of $66,340 (N/125). This proposal was apparently an initial price proposal that served as the basis for establishing the purchase demand by Dantes (Lavie, p. 1291, paras. 17-25; the purchase demand established by Dantes corresponds, as a rule, to the contents and prices in the proposal sent by Shahar, with the exception of a slight discrepancy in the number of memory components – Shahar referred to 48 components, while the demand was established for 50 components).
- On September 11, 2011, Shachar sent an email to Lavi, to which he attached the tender offer he had forwarded to Dantes a few days earlier for a total of $66,340 (P/166). In the email, Shachar noted that Dantes told him that he (Dantes) had forwarded a purchase demand to Lavi on the matter (ibid.). Lavie testified that Shahar tried to pressure and acted aggressively so that Value would receive the purchase order (P. 1323, S. 7-8, P. 1324, S. 2-3, S. 22-24, P. 1345, S. 13-24) and that she insisted that she must do her job as a procurement woman, conduct a procurement process as required while examining competing bids (ibid., and also: p. 1346, S. 6-8, 1336, s. 9, p. 1382, s. 13-18).
- On September 21, 2011 – ten days after she received Shachar's offer – Lavi sent Gilad Maharel an email in which she asked Gilad to contact her because she wanted to buy a NetApp shelf with CDs (P/435, P/436, P/167 – the first message in the thread in each of the exhibits; Lavi testified that she had previously tried to contact Gilad several times without success, 1292, paras. 11-13; and that part of her work is to woo suppliers and get quotes, p. 1324).
Subsequently, Lavi spoke with Gilad and gave him the details of the purchase demand in relation to which she had asked to receive a price quote from Harel. This is what Lavie testified (p. 1334, paras. 1-3, paras. 10, paras. 21-25, p. 1335, paras. 1-26). Her testimony was reliable and should be accepted. It is also clearly supported by the documents (see Gilad's follow-up letter to Shahar, which we will address immediately, P/435, P/436, P/167, the second notice below, in which Gilad mentioned to Shahar all the contents items in the purchase demand, in a manner that exactly corresponds to the demand (P/165) and even without the discrepancy that occurred in Shachar's offer to Dantes). Therefore, the defense's arguments should be rejected as if Lavi did not provide Gilad with the details of the procurement demand. Even the fact that a formal document was not presented to the suppliers does not change the nature of the matter and the fact that Alop sought to examine competing price quotes. The fact that Lavi contacted Gilad by email about 10 days after Shachar sent her the Wee-In offer also indicates that the pricing was ostensibly as claimed. In her testimony, Lavie explained that she had handled several transactions at the same time, that she had acted in accordance with urgency, that "this was not an emergency room," and that apparently towards the end of the month, the factory's employees sought to advance the matter (p. 1342, paras. 1-23)
- On the same day, 21 September 2011, Gilad forwarded Shachar the email that Lavi had sent him, and asked Shahar to "send me an offer for..." who subsequently detailed all the details of the purchase demand, which he received, as we saw above, from Lavi (P/435, P/436, P/167).
- In response, Shachar sent an e-mail message to Gilad, "Send Yael [Lavi], thank you, Shahar," to which he attached a price quote to Lavi, for Lavi, on Harel's logo paper, for a total of $71,876 (P/436). In the offer that Shachar sent to Gilad, there was an error in the number of components of the memorial (48 instead of 50 as stated in the purchase demand (P/165)). A few minutes later, Shachar sent Gilad another e-mail in which he wrote to Gilad, "Send it to Yael, I was wrong first in the number of memories", to which he attached an amended price quote on Harel's logo paper in the sum of $72,520 (P/167, this offer included 50 memory components in accordance with the purchase demand, and therefore its total price was slightly higher than that initially stated (P/165); Later on, Shahar also amended Wei's proposal to include 50 memory components, unlike the first proposal to Dantes, see below, P/169; In any case, there was no dispute that the offers of the two companies, Wee and Harel, met the procurement demand issued by Elop, p. 1293, paras. 2-5).
- In between, on September 21, 2011, Gilad submitted to Lavi Harel's offer for the purchase demand in the sum of $72,520 and in a manner that exactly corresponds to the correspondence between him and Shahar (P/168). In another e-mail, Gilad wrote to Shachar that he noticed Shachar's mistake regarding the number of memory components, corrected the mistake himself and sent Lavi the proposal (P/437).
- The bottom line: The evidence paints a clear picture. Wei and Harel, through Shahar and Gilad, reached an arrangement whereby Harel would submit its bid to Alop at the price requested by Shahar, which was higher than the price of Wee's offer, so that Wee's offer would be the cheapest offer and it would receive the purchase order from Weop. Gilad submitted Harel's proposal in accordance with the arrangement.
- The next day, on September 22, 2011, Lavi contacted Shahar in an attempt to lower the price of Wee's offer. Lavi wrote to Shahar that she wanted to reach a deal at a total price of $60,000 (P/169; see Lavi's testimony that she tried to lower the price, because there is room to improve the prices in these areas, and that she used to negotiate even after receiving the price proposals, p. 1293, paras. 10-18). Lavie explained that she contacted only Shahar and not Gilad because Gilad's offer was by a wide margin and she did not see the point in contacting him, since she estimated that Gilad would not have reduced the amount he had offered (over $72,000) to $60,000 (p. 1339, s. 22 - p. 1340, s. 19).
- In response, Shachar sent Lavi an updated offer from Wee in the amount of $61,819, writing to her, "I made the best price possible" (P/169, the offer he attached referred to 50 memory components as required in the procurement demand to begin with, and not to 48 as stated by Shachar in his initial offer; The amounts in the relevant rows for the memory components reflect a doubling of the price per unit by 50 and not as indicated there).
- After all this, Lavie wrote an internal reasoning document in Alop (P/170). Lavi explained in her testimony that only after the reasoning was given do the authorized authorities in Alop approve the issuance of the order (p. 1295, paras. 3-5, the date that appears on the document apparently reflects the date on which it was printed at the request of the authority, and see also the date at the top of P/165, N/125 and more). In her reasoning, Lavi wrote that following an application to a number of NetApp suppliers, offers were received from Harel and Moy, that Harel had made a total offer of $72,520, that Wie's offer was $67,000, and after negotiations, they succeeded in reducing Wie's offer by $6,000, so that the total price for Alop was $61,819 (P/170, p. 1293, S. 25 - P. 1294, S. 9).
- On September 26, 2011, Elaup issued a purchase order for a total of $61,819 (P/171, see the last p. 1).
- In the indictment, the defendants were also charged with the offense of fraudulent receipt.
- Shahar and Gilad did not disclose the matter of coordination with Alop and presented a false representation as if the proposals were submitted independently and without coordination.
- Lavi testified that Elbit is a very competitive, aggressive company, a company that "will not leave money on the table" and that its engagements on a relatively small scale are also done after competition, with transparency, with the CEO of Elop also involved in the procurement (p. 1288, paras. 15-23). Lavie testified that she did not know about the coordination between Shahar and Gilad, that she was first exposed to it when her notice was collected by the Authority, and that she was surprised by the coordination. She also testified that if she had known about this in real time, she would have stopped the procurement process and raised a flag, raising the matter to her superiors and up to the level of the CEO, while mentioning Elbit's code of ethics and expressing her opinion that this was a very serious matter (p. 1296, paras. 1-17).
Lavi's testimony that she did not know about the coordination and that if she had known about it, she would have stopped the procurement process would have been credible. No basis was laid to contradict her testimony and it must be accepted. Shahar himself did not claim in his testimony that she knew about the matter of coordination (p. 3064, paras. 11-13).