Koren explained the request for an exemption from a tender and for approval of the purchase of Wei as a single supplier "due to the necessity of the circumstances, in order to continue to receive comprehensive responsibility for all the components of the system. Otherwise, the concern is that in the event of a malfunction, if there are two companies that are obligated to provide a warranty, it will not be possible to receive service and each of the companies will 'pass the responsibility for the malfunction onto the other,' and that these are critical systems for the Mappi. Koren further stated in the application that the matter had been approved by the Director General of Mapi (P/83, Koren's letter dated March 14, 2012; the opinion, pp. 7-8 ibid.).
- On May 3, 2012, the Ministerial Exemption Committee approved the engagement with Wee with an exemption from a tender (P/83, on the last page). In the committee's decision, it was noted that the original engagement with Wei was made on October 23, 2011 – that is, following the 2011 Mapi tender (see also P/80) – and that there were no previous extensions in time or on the financial level for this engagement. The committee found that in view of the importance of maintaining the uniformity of the system in maintenance, it is necessary to approve an engagement with Wii with an exemption from a tender. The committee did not base its decision on the provisions regarding a single supplier. Instead, it relied on another clause in the Tenders Duty Regulations, 5753-1993, which dealt with a continuation engagement when the first engagement was made following a tender (there, the reference was to Regulation 4(3)(2) of the said Regulations; see also the testimony of Adv. Kirshner, who, as the legal advisor, even sat on the ministerial exemption committee, p. 6431, s. 31 - p. 6432, s. 25, where she testified that the engagement with Wei was approved as an extension of a previous engagement and not as a single supplier).
- Wei and Oshri argued that the same reasoning of engaging with one supplier for the purpose of receiving comprehensive liability also justified not to issue a tender from the Municipal Corporations in September 2011, and hence that the Mapi tender, in respect of which the coordination was made, the subject of the indictment, was a tailor-made, fictitious tender in which Way's win would have been committed and known in advance. In this context, she also relied on statements made by Koren in his testimony, during which he found himself in a certain confusion. We will discuss Koren's testimony in this context and these arguments below. As it seems, the contractor does not. In any event, they do not justify or legitimize the coordination of bids in a tender. We will now note only that at the end of the day, Koren testified that it is possible that when they decided to launch the Mapi tender, they did not think that there was justification for requesting an exemption from a tender, that they approached a number of NetApp suppliers in the Mapi tender in order to get the best price and that this was what guided him, and that after the value of the tender won the Mapi tender and an additional expansion was required, things looked different in terms of their scope and then they applied for an exemption from a tender (p. 590, 6-18). It therefore appears that it is not clear whether it was possible to operate with an exemption from a tender as early as September 2011 and the Mapi tender had passed. However, even if this were possible, and even if in retrospect Koren believed that he was mistaken in not acting to request an exemption from a tender as early as September 2011, it is clear that Mapi was entitled and sovereign to issue a tender from Mappi, because when it did so, it sought to receive genuine proposals and not coordinated idle proposals, and that in any case the tender participants were not permitted to coordinate the submission of the bids in the tender.
Reference to the defense's arguments
- Wei and Oshri raised various defense arguments.
Some of the allegations revolved around Oshri's involvement in the alleged arrangement. It was argued, inter alia, that Oshri was not a party to the arrangement, that he did not understand the e-mail correspondence about which the copy is addressed as an arrangement for coordinating bids in the Mapi tender, that he was not involved and was not present in the details, and that the fact that he was addressed to the information about the e-mails does not make him a party to the coordination arrangement.