The price at which Wei purchased the shelves from EMET – $28,500 per shelf – is more expensive than the price at which Wee could have purchased the shelves directly from Tap – $27,000 per shelf (Oshri, 5172, S. 6-16). This price reflects an additional cost to the borrower, and consideration for EMET for its share in the summary. As emerged from Rubinstein's testimony, Shahar was forced to purchase the shelves from EMET – and not directly from ATP – at a higher price, thus giving up part of the margin and sharing it with EMET due to EMET's agreement to submit an offer at a high coordinated price (p. 3698, paras. 6-24, for claims that the matter was done with NetAP's involvement or initiative – we will be required separately).
Subsequently, Wei sold the shelves to the Mapi (P/81, invoice dated 8.11.11).
- Interim summary: The picture that emerges from the evidence from real time and from the testimonies is clear. In the Mapi tender, Mapi asked to receive proposals for additions to NetApp CDs. Mapi contacted authorized suppliers of NetApp, including Wie, EMET and Harel. Wei sought to "close the corner" with EMET and Harel so that they would submit higher bids than her own. A summary was reached in a conversation between Shachar and Rubinstein, according to which Wei would be the winner of the tender, and in return Wee would purchase the shelves that were the subject of the tender, and Bean sent Rubinstein the prices that EMET must state in its bid. Oshri was involved and writes about the email correspondence. E.M.T. submitted its bid in accordance with the agreement, and Wei won the tender from the Pesach and subsequently purchased – as agreed in advance – the shelves from A.M.T. in a manner that reflects consideration for the latter. In other words, the arrangement was also carried out in its entirety. The evidence shows that Shahar, Oshri and Rubinstein and the companies Wee and EMET were parties to the arrangement. The arguments regarding Oshri being a party to the arrangement will be addressed separately. At the same time, Shachar sent Tzaeger the prices that Harel must submit in her proposal. In doing so, Wei and Shahar tried to be a party to a coordination arrangement with Harel as well (the Nehoshtan case, at paragraph 9(c) of the judgment).
- In the indictment, the defendants were also charged with the offense of fraudulent receipt.
- Shahar, Oshri and Rubinstein did not disclose the matter of coordination with the Mapi and presented a false representation as if they had submitted independent and uncoordinated proposals.
- Koren, who was the contact person on behalf of Mapi in the Mapi tender and a member of the ministry's tender committee, testified that he did not know in real time about the summary of the coordination between WI and E.M.T.: "What did they do there between them, I went completely crazy? I didn't know and I don't know where they got it from" and that if he had known he would have turned to the legal advisor, saying that "there is something stinky here" and stopping the tender (p. 560, paras. 7-16; p. 595, s. 16; See also his testimony that when he learned of the matter during the interrogation he had a difficult feeling, as if he had received a slap in the face, p. 560, paras. 17-27). Kirshner, the legal advisor of the Mapi Authority, who participated in the meetings of the Ministry's tenders committee, also testified that she did not know about the matter, "God forbid", that when she learned of the matter after the Authority's request, they felt like a victim of an offense and that if she had known about the coordination in real time, "we would have disqualified the tender in its entirety", they would have contacted the Competition Authority and the Accountant General and warned about it (p. 6427, paras. 8-15). These testimonies were not contradicted and must be accepted (and they are also supported by Rubinstein's testimony, from which it emerged that the words were done behind the backs of Koren and Mappi, because of which Rubinstein felt unpleasant and embarrassed towards Koren, and that she did not discuss it with Koren, p. 3643, s. 11 - p. 3644, s. 6).
- In these circumstances, the elements of the offense of fraudulent receipt also exist: fraud in the very submission of bids for a tender, after coordinating the prices of A.E.T.'s bid and failing to disclose the summary and coordination (see paragraphs 27-28 above); Acceptance of the matter – in the assumption of the opinion of the Mapi and the Ministerial Tenders Committee regarding the validity of the bids and the proceeding and the winning of Wei (see paragraph 29 above) when the causal connection arises from the above testimonies that show that had it not been for the concealment, the Mapi officials would have acted differently. Since the fraudulent acts are based on another offense – a restrictive arrangement – while harming the tender process of a public body and public funds, taking into account the financial scope (close to NIS 500,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00
- Wei and Oshri sought to reliance on defense arguments that they also raised an exemption from a tender given to Mapi for the purpose of purchasing additional CDs from Wei, in May 2012 – a few months after the coordination regarding the Mapi tender from September 2011 (2012 exemption). These arguments will be discussed later. At this stage, we will briefly present the facts regarding the 2012 exemption.
Exemption 2012
- During the month of March 2012 – a few months after the Mapi tender, in respect of which the coordination was made as stated above – the Mapi needed two additional NetApp disk shelves in order to thicken the storage system in the Be'er Sheva area (P/83, see the reference in the "Description of the Essence of the Engagement" in the opinion at p. 6 there).
- Koren worked to promote an engagement for the purpose of purchasing the discs from Vi with an exemption from a tender.
For this purpose, he submitted a request for exemption from a tender to the ministerial exemption committee. In the application, he detailed that Mapi had purchased a NetApp central disc and a number of CD racks, that the overall responsibility for the CD package was Wie's until the end of 2014, and that there was a need to condense the central disc in the Be'er Sheva area (P/83, Koren's letter dated March 14, 2012; in the opinion, Koren noted that Wii had won the Mapi tender (P/357 of September 2011) and that by virtue of this tender it would maintain the system until 2014. ibid., p. 7). Koren noted that the purchase of the two additional discs will cost a total of NIS 326,087 (including VAT), based on the prices of the 2011 Mapi tender (where, the cost does indeed match the winning prices of Wii in the Mapi tender)).