Mapi Tender - P/357 - for the addition of CDs and the coordination of the subject matter of the indictment in question
- On August 16, 2011, the Ministerial Tenders Committee decided to approve a closed tender for NetApp's authorized suppliers, for the purpose of purchasing additional CDs (P/71, para. 1; para. 0.12.1 to P/78; Koren, p. 554, paras. 7-18).
- Details of the tender - On September 11, 2011, the IPI published the tender A/357 – which is the tender of the IPI that is the subject of the indictment in question – in which bids were requested for the addition of CDs for NetApp, purchase, installation and maintenance in the IPI (P/72).
Mapi contacted five authorized distributors of NetApp on the matter according to a list it received from NetApp (P/73, Koren, p. 553, paras. 4-11, paras. 24-25). The distributors contacted by P.I. were: Wee, A.M.T., Harel, Anchor and Glass House (ibid.; see also note B/76; for the application, see P/318, P/574; L.E.M.T. - P/59; Harel - P/266, P/347; Lancor & Glass House - P/75). Anchor and Glass House announced that they would not submit the tender (P/75, P/76). Three companies: Wee, A.M.T. and Harel, purchased the tender documents (P/74, P/76). In the end, only two: V. and E.M.T. submitted bids for the tender (P/76, P/77, P/78, Koren, p. 557, paras. 15-20).
The Mapi tender documents were made available for purchase as of September 11, 2011. The deadline for submitting bids was set for October 11, 2011 (e.g., p. 5 of P/78).
In the tender, Mapi sought to receive proposals for additional CDs for NetApp, including the purchase, installation and maintenance (ibid.). In the tender documents, it was determined that the winner must install, assimilate and maintain the discs at the main office of the Mapai in Tel Aviv for three years (ibid., p. 6). Provisions have been established regarding the total liability of the winner for a period of three years (e.g., clauses 0.7.3 and 0.7.7 there).
The Mapi tender was based on price. The tender documents did not include a quality component. In other words, in accordance with the tender documents, the bidder whose bid will be the cheapest will win (clause 0.12.2 of the tender documents (P/78), 100% of the cost component; Koren, p. 574, paras. 14-15 "The cheapest takes"; Koren, p. 557, paras. 22-32, as soon as we are dealing with authorized suppliers of the manufacturer, NetApp, they did not introduce a quality component and went for the cheapest price; Koren, p. 554, paras. 7-18; Adv. Kirshner, p. 6426, paras. 23-26; Rubinstein, p. 3680, paras. 16-18).
- The Attributed Coordination – As stated above, in the indictment in question it was attributed that Wee and EMET were a party to a coordination arrangement whereby EMET would submit to the CPI tender a higher bid than Wee's bid; and that Wee tried to be a party to a coordination arrangement with Harel as well, according to which Harel would also submit to the MAPI tender a higher bid than Wee's bid.
- We will now discuss the facts as they became clear regarding the submission of the bids for the Mapi tender and the alleged coordination.
- The coordination between Wei and EMET – on the part of Wei, in providing a response to the IPI tender, Shahar, Oshri, and Yigal Babayan (Babayan), who was a salesman at Wei (p. 2893, s. 18). On the EMET side, Rubinstein was involved, as was Oz Reshef (Reshef), who was a salesman in the team managed by Rubinstein (p. 3695, paras. 4-10).
- After receiving the request to participate in the Mapi tender, both Wei and EMET acted to receive quotes from MapTap for the shelves in the tender (for example, P/253, inquiries in Bayan to Noy Mantap from September 12, 2011 and September 14, 2011; this was after Shahar forwarded to Babian the request from Mapi, P/318, P/547). The evidence shows that NetApp gave Levi and N.E.M.T. identical price quotes – that is, it offered to sell the shelves to both of them at the same price – without giving any of the suppliers price priority (P/559, N/58 - a price quote to E.M.T. dated September 19, 2011 in the amount of $27,000 per shelf for the IPI tender; P/253, P/277 - a price quote identical to Lewis dated September 19, 2011; and see also a reference in the statement to the fact that Noy Mantap made the same offer for everyone; see also: Noy, p. 6270, paras. 20-23; Oshri, p. 5166, paras. 11-16; Zeiger, p. 5970, paras. 22-23, where he testified in connection with the tender that NetApp gave in the tenders with the same hand as the various suppliers).
- On September 13, 2011 – two days after the date on which the tender documents for the purchase of the suppliers were submitted – Babian sent Shahar an e-mail in which he wrote to Shahar as follows: "I want to close Mafi's corner before the end of the month because of the holiday, and the submission leaves right at the end of the holiday. I need the phone number of Yael [Rubinstein] from EMET and the guy from Harel to help me close the corner" (P/319, underline added). A short time later, Shachar Levabian replied, "No problem, tomorrow I'll close it for you" (P/319). Shahar testified that the intention was to settle with Harel and EMET that they would submit prices higher than the price of Wei's offer (p. 2894, paras. 1-2). In his testimony, Shahar confirmed his statements from the interrogation that the request that he (Shahar) assist in coordination with A.M.T. and with Harel was also Oshri's, meaning that it was Oshri and Bayan who asked him to assist in coordinating the price proposals (p. 2894, s. 21, p. 2895, paras. 3-5, paras. 14-17, following P/557(10), paras. 255-262; this despite his attempts in testimony to evade Oshri's involvement; in his testimony, Shachar tried to justify the coordination by saying that it was clear that the value of Mantap would receive a preferential price, 2893, paras. 28-30, even though we saw above that Nettap gave Levi and E.M.T. LE-KHATḤILA the same price).
- On October 2, 2011, Shachar sent Rubinstein an email to which he wrote in a copy of Oshri and Bayan (P/254, P/356, P/278, P/82, P/558). In the message, Shahar wrote:
"Yael,