Shachar was convicted of the offense of a party to a restrictive arrangement regarding the Mapi and EMET tenders (without attributing the experience with Harel) and of the offense of fraudulent receipt, without aggravating circumstances attributed to him. Rubinstein and A.M.T. were convicted of the offense of a party to a restrictive arrangement without being charged with the offense of fraudulent receipt. This does not negate the possibility of convicting other defendants of the offenses attributed to them, to the extent that guilt is proven at the required level (see the discussion at paragraphs 201-214 above).
Oshri and Levy, who remain in this indictment, are charged with an offense of a party to a restrictive arrangement under section 47(a)(1) of the Law as drafted at the relevant time, together with sections 2(a), 2(b)(1), 2(b)(3), 4 and 55a(b) of the Competition Law, as well as the offense of fraudulent receipt under aggravated circumstances, under section 415 of the Penal Law. A loan is also attributed to an attempt to make a restrictive arrangement under section 47(a)(1) of the Law as drafted at the relevant time, together with sections 2(a), 2(b)(1), 2(b)(3), 4 and 55a(b) of the Competition Law and section 25 of the Penal Law. Oshri was also charged in the indictment with liability for officers by virtue of section 48 of the Competition Law (in relation to the offense of a party to the arrangement and in relation to the offense of trial). In all of the above, the indictment refers to section 23(a)(2) of the Penal Law.
Discussion
- Mappi, the Center for Mapping Israel, is a professional auxiliary unit in the Ministry of Construction and Housing. The focus of the indictment in question is a tender A/357 published by the Mapi in September 2011 (the Mapi Tender), which deals with the purchase of NetApp CD add-ons, as well as installation and maintenance at the Mapi Authority. This is as an addition and extension to an existing storage system.
- Key witnesses to this indictment included: Yael Rubinstein (Rubinstein, formerly Tsafrir, p. 3645, s. 18), who at the relevant times was the manager of a sales team at A.M.T. (p. 3635, s. 15) and who was convicted as part of a plea bargain as a party to a restrictive arrangement in connection with the Mapi tender; Alex Koren (Koren), senior manager of the Information Systems and Computing Division at the Mapi Authority, who was the contact person on behalf of the Mapi in all matters relating to the Mapi tender that is the subject of the indictment in question (e.g., Clause 0.3.2 of T/78); Adv. Gili Kirshner ( Kirshner) Legal Advisor of the Mapi (p. 6412, paras. 6-14). Koren and Adv. Kirshner were members of the ministerial tenders committee that accompanied the Mapi tender (P/76). Ronen Noy (Noy) Mantap also testified regarding the facts relating to this indictment. Oshri – to whom the offense of a party to a restrictive arrangement was also attributed here – and Shahar also testified in relation to the charge in question.
- As stated above, the Mapi tender, in respect of which the proposals attributed to the indictment in question were coordinated, was published in September 2011. The interest of the Mapi tender was in the addition of disks to the existing storage system of the Mappi. Wei and Oshri raised defense arguments that were based, inter alia, on a previous tender published by the Israel Transportation Authority at the end of 2010 – tender A/335 – for the upgrade of the storage system, which was won by Wei (the 2010 tender). In addition, defense arguments were raised in reliance on an exemption from a tender given to Mapi in May 2012 – i.e., at a later date than the privileged coordination – for the purpose of purchasing additional CDs from VI (2012 exemption).
- At the outset, we will relate chronologically to the main facts as they became clear in relation to the 2010 tender, in relation to the 2011 MPI tender and the coordination of the subject matter of the indictment in question, and in relation to the 2012 exemption.
Tender 2010
- The evidence presented indicates that in the first place, and even before 2010, it was EMET that supplied the NetApp storage systems to Mapi. It was A.E.M.T. who worked at the Mapi for a number of years (Rubinstein, p. 3638, s. 11-23, p. 3682, s. 5).
- On November 1, 2010, Mapi published Tender A/335 – which is the 2010 tender – for upgrading NetApp systems, including DRP, purchase, installation and maintenance at Mapi (P/56, DRP stands for: Disaster Recovery Plan, Koren, p. 565, paras. 18-19). The tender revolved around upgrading the systems and installing them at the central site of the Mapi in Tel Aviv and at a secondary site in Be'er Sheva (p. 25 to N/56).
The defense asked to build from the 2010 tender. Before the court and during the cross-examination of the witnesses, a full factual picture was not published in relation to this tender (for example, p. 584, s. 18 - p. 585, s. 3; p. 589, s. 32 - p. 590, s. 2; p. 581, s. 30 - p. 584, s. 4).