It was further argued that Levi had a special status with NetApp, both because of the fact that Value was the one who installed the central storage system at Elbit and because Value was a premium partner of NetApp (see, for example, the offer of VN/125 with the NetApp logo on it and the indication that it is a platinum partner; Lavi, p. 1352, paras. 2-26, p. 1364, paras. 10-12, where it testified that to the best of its knowledge, a premium supplier is someone who has kashrut,  that he may also have a preference in prices, but as far as she is concerned, she needs to check that she is getting the best quotes, and the fact that a certain supplier is in a premium status does not mean that you can only buy from them).

Another argument that was raised is that the purchase of extensions was arranged in the engagement for the purchase of the central system from Wei in a kind of 'framework agreement' between Elbit and Levi (Shahar, p. 3440, paras. 5-6; even though we saw in paragraph 747 above that it was only an option and not an undertaking by Elbit towards We; the engagement documents for the purchase of the central system were not attached to the procurement demand established by Dantes and which was transferred to Lavi's care.  P/165, and Lavi testified that she did not know about the details of the purchase of the central system by Elbit, p. 1375, paras. 17-26; See also her testimony that at that time Elbit's procurement entities were decentralized, and operated through various systems that were not connected so that she at Elup could not necessarily have known about procurement made by Elbit, p. 1374, s. 16 - p. 1375, s. 10).

568. All the arguments must be rejected, and in any event, they do not justify or legitimize the coordination of proposals. Lavi and Alop wanted to conduct real bidding in order to make sure that Alop would receive the best bids.  The coordination arrangement undermined this.  We will briefly discuss the main points.
569. First, from the testimony of Lavie, who coordinated the procurement process that is the subject of the indictment, it clearly emerged that Lavie sought to hold a real competition, that she wanted to check and make sure that Alop was receiving optimal prices before issuing an order for purchase, and that she did not do so for the sake of appearance or protocol alone (p. 1364, s. 24, it was important for her to receive another price quote; p. 1292, paras. 7-24, From a competitive, commercial point of view, she insisted on receiving another price quote before placing an order – from her testimony it is clear that she wanted to hold a competition and check the prices; p. 1336, s. 9, she turned to receive a real offer; P. 1373, paras. 7-25, even if there are advantages on the technical side, it cannot affect the competition and the holding of a price check, the procurement is not a rubber stamp and she insisted on receiving another price quote not in order to make a "V" but in order to really check the prices and also to show the supplier(s) that he is not an only child; p. 1352, paras. 2-6, even if a certain supplier has a premium status, it will still conduct a price check; P. 1382, S. 4-18, asked for an additional price quote in view of the scope of the order, about $70,000, and in order to make all the checks that the price is suitable for the budget, etc., and not in order to make a "V", p. 1382, S. 4-18; p. 1385, paras. 9-10 and more).  This testimony was reliable.  It should be accepted.  All the attempts to cast doubt on her testimony or to erode it while referring to various matters, some of which are side as we saw above, were not convincing (Lavi explained her repeated appeal to Gilad after she had not received a price quote from him in order to examine the price quote she had received from Vi and from a competitive point of view, p. 1292, paras. 7-24; also the arguments regarding the answers she gave regarding NetApp's preference between the suppliers,  1368, paras. 12-16 (without laying the groundwork for NetApp's actual involvement in the procurement process in question of Alop), or with respect to the question of whether it knew about Elbit's engagement to purchase the central system, p. 1375, paras. 17-21 (in relation to which Lavi explained the decentralization between the procurement entities) do not change the conclusion regarding the reliability of Lavi's testimony).
570. Second, there is no impediment or difficulty in purchasing extensions for a storage system even from another vendor who did not provide the central system. It is clear that this is technologically possible (Noy, p. 6246, paras. 1-19).  Even if there are advantages to purchasing the extensions from the supplier that supplied the central system, this is left to the discretion of the customer, who can consider various considerations, including the price of the extension, his satisfaction with the services of the first supplier, the issue of warranty, etc., and in any case there is room and feasibility for competition and receiving price quotes – real offers.  Lavie clearly testified that there is no need to purchase an extension from the person who supplied the central system: "Absolutely not, absolutely not...  There is no such thing" (p. 1299, paras. 1-8; Zeiger testified that those who supplied the central system had an advantage in supplying the extension, without saying that there was no possibility that another would provide the extension, p. 5992, paras. 12-20; See also Shahar's testimony, p. 3293, paras. 9-17, where he testified, contrary to his interest and what he said elsewhere, that it was possible to purchase an extension from another supplier, and that this also happened in practice, even if rarely; See also Noy's testimony, pp. 6247-6248 and Lavi, p. 1372, paras. 21-23, from which doubts arose as to whether the issue of liability has a central or decisive weight as claimed).  Lavi further testified that Wei and Harel are both authorized distributors of NetApp, both had the required authorizations, both were able to provide the extensions required here (p. 1295, paras. 14-20), and that as far as Lavi was concerned, that is, in terms of the procurement of Alop, there was no impediment to the purchase of the extensions from any of Netap's suppliers, including Harel (p. 1367, paras. 8-18).  Lavi added that even if it is possible that Levy was active on a larger scale at Elbit, it does not matter in terms of the process and the possibility of contacting others (p. 1367, paras. 19-26; see also p. 1373, paras. 7-12, where she explained that there is value in receiving quotes for holding competition and checking prices, and also so that the supplier who supplied the central system will know that he is not a "only son", meaning that he has competition).

In other words, even from a practical point of view, it is clear that there was a possibility of competition (see also paragraph 831 below, where a similar argument was discussed in relation to the thirteenth charge).  In any event, and detached from what has been said, it is clear that even if there was an advantage – whether as someone who provided a central system or as someone who could receive a preference from the manufacturer – there is no justification for coordinating price quotes behind Alop's back, and the defense's arguments do not qualify such coordination.

571. Third, coordinating the price quotes is liable to harm competition even if at the end of the day the customer chooses to purchase the extensions from the supplier that installed the central storage system (in our case, Wei). This is the case, for example, if the other supplier (Harel) submits a low price quote – or a price quote that the installer supplier does not know its content and is not coordinated with it – as a result of which the customer will return to the installer supplier (Wi) and ask him to lower the price in light of the competing offer.  In response to the court's question, Shahar testified that to the extent that Harel had submitted an offer that was lower than Wee's, it is possible that Alop would have approached Wei with a request to lower the price of her bid accordingly (p. 3441, paras. 16-18; see also p. 3440, paras. 22-23, where he confirmed to the defense what she had offered him and tried to disapprove in an unconvincing manner from similar statements he had made in his interrogation regarding the scenario in which Wei would be required to lower the price due to Harel's cheap offer.  P/557(9), S. 510-521; Although Shahar claimed that in light of the aggressive assumptions received by Wee Mantap, the scenario of Harel's cheap offer was unreasonable, he did not rule out such a possibility, for example, if Harel had decided to "commit suicide" and lower prices, ibid.).
572. Fourth, the arguments that the purchase of extensions were arranged in the engagement for the purchase of the central Wii system in 2010 should not be accepted, so that the request for quotations for the purchase of extensions is nothing more than a procedure "tailored" to the protocol only (e.g., paragraph 503 of the Wii Summaries). We have seen above that it clearly emerges from the documents and testimonies that in the framework of the engagement for the purchase of the central storage system, Elbit was given an option to purchase Wii extensions in the future, to the extent it deems appropriate and at the maximum prices determined, and that this is not an undertaking by Elbit to purchase from Wii (see paragraph 747 above).  In any event, the agreement made at the end of 2010 for the purchase of the central system does not negate future pricing for the purchase of extensions or to make such pricing fictitious as claimed.  Moreover, the options in the 2010 engagement (P/124, para. 5.2) did not relate to all the details of the contents that were required in the purchase of the extensions that are the subject of the indictment in question (P/165, P/169, where memory components were also included, for example; the price of Wie's offer is also different from the price specified in the 2010 engagement).  Finally, even Wei was of the opinion that Elbit was obligated to it by virtue of the 2010 engagement – and we saw that there was no basis for this claim – and that the request to receive a price quote from Harel constituted a breach of contract against Wei was not sufficient to change it.  As we have seen above, such a situation does not permit an arrangement to be made for the coordination of proposals in contravention of the Competition Law or to legitimize such coordination (see paragraph 180 above).
573. Fifth, and even ignoring the rule of the above, on the legal level we are dealing with the coordination of the price of bids, i.e., a restrictive arrangement that falls within the scope of the absolute presumption set forth in section 2(b) of the Law as one that establishes libels to harm competition, and which is inherently prohibited. This is sufficient to bring about the rejection of the defense arguments raised by the defendants, which do not justify or legitimize him (and this is regardless of the fact that the defendants did not point to any reason why they acted to coordinate).
574. Supplementary note with respect to Gilad – Harel argued that it was another Harel salesman – and not Gilad – who was in charge of Elbit at Harel (Zeiger, p. 5272, paras. 19-21, the name of the sales manager who was in charge of Elbit was not mentioned); that the very fact that Lavi contacted Gilad and not the correct salesman testifies that Lavi did not want to hold a real competition; and that here too, Gilad acted against Harel's interest while harming her and due to a private interest in helping Shahar (paras. 661-662, 689 for Harel's summaries).  These arguments should not be accepted and do not change the conclusion.  Lavi explained that Harel was a suitable and relevant supplier from her point of view and that she contacted Gilad, whom she knew and with whom she had met several times (p. 1383, paras. 4-24; Harel did not refer to the place where she confronted Lavi with the name of the salesperson who she claimed was appropriate or asked why she did not contact him).  As for the allegations regarding Gilad's action and interest, Gilad himself was not brought to testify.  Gilad, as a salesman, submitted a price quote to the customer who contacted him.  Therefore, he should be regarded as someone who acted in the performance of his duties, even if he allegedly deviated from the authorization in the case of a client who is not in his area of responsibility (see paragraph 18 above).  The evidence shows that he acted within the framework of the general improper conduct that was formed between the two companies, Wii and Harel, and it cannot be said that he 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).
575. Therefore, the defense's arguments regarding the twelfth charge should be rejected.

The Twelfth Charge: The Result

576. The result of the aforesaid is that it has been proven, beyond a reasonable doubt, that the coordination and restrictive arrangement that is the subject of the twelfth indictment – the purchase of storage extensions for Alop – was proven that Shwe and Harel were parties to it. Therefore, and in view of the reasons detailed above, I convict Wei and Harel of the offense of being a party to a restrictive arrangement under section 47(a)(1) of the Competition Law, as drafted on the eve of the commencement of Amendment No. 21, together with sections 2(a), 2(b)(1), 2(b)(3), 4 and 55A of the Competition Law, as well as of the offense of fraudulent receipt under aggravated circumstances, under section 415 of the Penal Law.  The conviction is also based on section 23(a)(2) of the Penal Law.

Oshri - Section 48 of the Competition Law - Officer's Liability

577. In the framework of the twelfth indictment now being discussed, Oshri was charged with an offense under Section 48 of the Competition Law.
578. For the reasons detailed above in the discussion of section 48 in connection with the previous charges, here too it was proven that Oshri had the elements of the offense under section 48 of the Competition Law in relation to the twelfth charge and the date on which it was committed: Oshri was an active manager of Wey; Wei was convicted of the offense of a party to a restrictive arrangement in the charge here; And Oshri was not able to prove that he did what was necessary for the purpose of supervision and to prevent violations of the Competition Law.

The Thirteenth Charge

Thirteenth Charge: Israel Mapping Center - October 2011

579. The thirteenth indictment was directed at Oshri, Shahar, Wei, Rubinstein and A.M.T. The indictment revolved around a tender published by the Israel Mapping Center, which is a professional auxiliary unit in the Ministry of Construction and Housing (Mappi).  According to what is alleged in this indictment, on September 11, 2011, Mapi published a tender A/357 for additions to NetApp CDs, including the purchase, installation and maintenance of Mapi (Mapi Tender).  The deadline for submitting bids in the Mapi tender was October 11, 2011.  According to the indictment during the months of September and October, prior to the deadline for submitting the bids, the aforementioned defendants were parties to an arrangement whereby A.E.M.T. would submit a higher price bid than Wee's in order to enable an escort to win the Mapi tender.  In return, it was agreed that Wii would purchase the components required for the tender from the Municipal Corporation of Israel (CPI).  Shahar and Levi are further credited that on October 9, 2011, they tried to be a party to an arrangement whereby Harel would submit a higher price quote than Wee's in order to enable Levi to win the Mappi tender.  According to the accused, Wei and EMET submitted their proposals in accordance with the arrangement.  Harel did not submit a bid for the tender from the Israel Land Authority.  Wei won the tender for NIS 450,000.  Oshri, Shahar, Wei, Rubinstein and EMET were also credited with making a false representation to Mapi according to which their proposals were submitted independently, without consultation, coordination or contact with another bidder, and in any event they did not disclose the fact of coordination between them (the misrepresentation) and that based on the misrepresentation, Mappi's opinion regarding the validity of the bids of Wei and EMET was accepted and Wee's offer was accepted as the winner.  Oshri is also credited with not supervising and doing everything possible to prevent an offense under the Competition Law.

The case of Shahar, Rubinstein and A.M.T. ended, as stated above, in plea bargains.