Second, Wei and Oshri claimed, as stated, that Shahar acted in contravention of Oshri's no-bid policy and contrary to his instructions, but they did not present real evidence that Oshri instructed Shahar to refrain - in cases that he claimed justified a no-bid - from making proposals for a civil appeal in general or to refrain from submitting a bid in any of the competitive proceedings that are the subject of the indictment.
Third, the allegations with respect to the alleged no-bid policy are in any case irrelevant to a significant part of the charges in which, in accordance with the attributable coordination, Wee was the one who was supposed to submit the lower bid - the winner - while the other suppliers were supposed to submit higher bids in order to allow Wei to win. In this state of affairs, the Wei and Oshri method also has no effect on the alleged no-bid policy.
In view of the aforesaid rule, the argument that Shachar's conduct in submitting the motions for the proceedings that are the subject of the indictment was done in contravention of the policy or instructions given to him should not be accepted, and in any case this does not change the conclusion that he should be regarded as an organ of the wee. This is even while ignoring the fact that in accordance with the case law, as detailed above, the definition of situations that will be included in the expression "in the performance of his duties" should be interpreted extensively, and that these also include the action of an organ in an alleged deviation from authorization.
- Wei and Oshri argued that in another case, the accuser did not prosecute Wei for the actions of Shachar (Criminal Case (Shalom Rishon LeZion) 44846-01-19 State of Israel v. Menashe (June 4, 2019)) and therefore cannot claim in our case that Shahar is an organ. A review of the indictment filed there (N/129) and the sentence in that case shows that Shahar was accused of improper cooperation with the representative of the civil appeal and that Shahar was convicted of the offense of aiding and abetting a breach of trust. The acts attributed there to Shahar are different from those attributed to him in the indictment here (see also the discussion at paragraphs 897-902 below). Nor has a sufficient foundation been laid that can derive from the conduct of the accuser there in our case.
- To sum up a point: Oshri and Dawn should be considered Wee organs.
Harel - Zeiger and Gilad are organs of Harel
- Zeiger - As mentioned, Zeiger initially served as the manager of the sales team of the public sector in Harel. Under him, there were 7 salespeople. In this framework, Zeiger was also responsible for sales to all defense industries, including IAI. Later he served as the company's VP of Sales. In his positions, he was responsible for the tenders field in the company (P/218, paras. 31-37, paras. 43-50; p. 5270, paras. 16-24). According to the above tests, taking into account the role he held, his authority and his responsibility, Zeiger was Harel's organist on all the relevant dates. Zeiger and Harel did not disagree on this (for example, paragraphs 101 and 124 of Harel's summaries, where they noted, inter alia, that Zeiger had managerial powers, independent discretion and the authority to bind Harel; and see also p. 6988, paras. 21-23).
- Gilad - Gilad was a salesman on Zeiger's team and was subordinate to him (p. 5272, paras. 16-24). As a salesman, Gilad was solely responsible for the procurement transactions with Elta at Harel and was a key salesman in the civil appeal (ibid., p. 5531, s. 17, p. 5532, s. 4-6, s. 14-16, p. 5533, s. 12-13, p. 5534, s. 14, p. 219, s. 64-65). Zeiger pointed to Gilad as the person in charge of Harel in providing bids for a civil appeal (P/219, paras. 106-111, p. 5532, paras. 7-9). Gilad actually submitted bids on Harel's behalf for a civil appeal (e.g., P/54, P/566). It was these proposals that earned and obligated Harel. Civil Appeals and the Procurement Authorities) 6988, paras. 21-23, where they confirmed that Gilad had more than once seen Gilad as the address for their inquiries on the various issues related to procurement and proposals (e.g., P/69, P/566; much evidence to this effect will be brought in the hearing of the specific charges). Zeiger explained that Gilad had full discretion, at least very broad discretion, with regard to the price proposals, without limiting the amount and without the need for Zeiger's approval. In Zeiger's words, "[Gilad] is authorized to submit price quotes of any amount, yes. There is no law or procedure in a company that is allowed up to a certain amount and is not allowed to do so. It is at his discretion" (P/223, paras. 440-442). Zeiger testified that in complex or large transactions, say over ILS 1 million, Gilad could or should have informed him, but there was no clear or defined rule in this matter (p. 5584, paras. 1-20). Gilad - like other salespeople who worked under Zeiger - was given a high degree of independence, because they acted with large clients, such as civil appeals (p. 5534, s. 23 - p. 5535, s. 4). Zeiger testified that all the salespeople under him worked very independently and acted as an "independent unit", with broad discretion and independence, both with regard to sales and technically, and that this was even more true in relation to Gilad in view of the fact that he had considerable technical knowledge (ibid., and also p. 5284, paras. 12-18). The aforesaid rule is sufficient to lead to the conclusion that in accordance with the functional test, taking into account Gilad's role, authority, responsibility and scope of discretion, Gilad was an organ of Harel insofar as we are dealing with the submission of bids for the competitive proceedings that are the subject of the indictment.
- Zeiger and Harel argued in their summaries that Gilad should not be considered an organ of Harel. According to them, Gilad was a junior employee at the bottom of the sales department's hierarchy; that he was only a salesman and not a customer manager as described in the indictment; for there were no servants subordinate to him; that he lacked managerial authority; that even though Gilad had a margin of discretion in submitting price quotes, he did not have absolute discretion (p. 5274, paras. 5-8, p. 5584, paras. 16-18, even though there, too, Zeiger noted that Gilad was independent and that there was no clarity as to the need to inform Zeiger); that Gilad did not have the authority to approve orders or to make purchases from other distributors (p. 5585, paras. 4-7); that the conduct vis-à-vis IBM and the financing team was the responsibility of Zeiger (p. 5573, paras. 15-18, p. 5585, paras. 13-16); and that the authority given to Gilad to submit price quotes on Harel's behalf does not have the authority to turn it into an organ, since every order for sale or purchase demand from another supplier was signed by its senior executives. Zeiger and Harel argued that the judgments to which the accuser referred dealt with someone who had a senior status from Gilad who did not manage anything independently and could not be defined as a central factor in Harel; that Harel employed about 200 workers on the relevant dates (p. 5272, paras. 3-8); that the civil appeal was not a major customer of Harel at the relevant period, and that the total sales to Elta at that time amounted to a few million shekels, constituting about 2%-3% of Harel's sales (N/380, pp. 5276, 19-3). Zeiger and Harel sought to support their claim regarding Gilad's junior status in the testimony of Peretz, as stated above, the head of the server procurement and communications department at Maman, in which he noted that in some cases he was not satisfied with Gilad's offer and turned to validate it with Zeiger (p. 1583, paras. 11-22, p. 1692, s. 25 - p. 1693, s. 12), even though the testimony showed that Gilad - as a salesman - was authorized to give a price quote (p. 1693, S. 6, P. 1694, S. 8) and that the application to Zeiger was made only in certain circumstances, for example, in the circumstances of the project described therein, when a five-year commitment was required, or when it came to the level of a framework agreement or a framework agreement for the project (P. 1692, S. 4-7, P. 1694, S. 1-6).
- None of these and any of the claims of Zeiger and Harel change the conclusion that Gilad was an organ of Harel at the relevant times. Even if Gilad did not have employees or certain matters such as the purchase of equipment or dealings with IBM were not under his authority, or because in certain circumstances the person who saw the civil appeal should also contact Zeiger, none of this detracts from the clear picture that emerges from the evidence, including from Zeiger himself, that Gilad was responsible for providing price quotes on behalf of Harel. Because he had, at the very least, very broad discretion in the matter, because he was given a high degree of independence and that the proposals he submitted obligated and acquitted Harel. In this state of affairs, and according to the criteria detailed above, Gilad was an organ of Harel as far as the submission of bids in the competitive proceedings that are the subject of the indictment. Proper legal policy also supports the conclusion that a salesperson authorized to bid on behalf of the corporation should be regarded as its organ insofar as we are dealing with the submission of price quotes, which allegedly constitutes a violation of competition law.
- Beyond the identification of Gilad as Harel's organ, the question of whether it is appropriate in the circumstances of the case to hold Harel responsible for Gilad's actions. In this context, we must address the auxiliary tests outlined in the case law, including the question of whether the actions were carried out in the course of the performance of the position, and as a specific case of whether they were for the benefit of the corporation or at least not directed against it.
- In the circumstances of the case, Gilad clearly acted in the course of fulfilling his duties. The submission of proposals in the competitive proceedings that are the subject of the indictment was clearly done within the scope of his areas of authority, responsibility and in accordance with his discretion. Gilad should also be seen as someone who acted for her and for Harel's benefit. In some of the charges, Zeiger was directly involved in the alleged coordination and was informed and wrote in real time about coordination correspondence together with Gilad (see only for the example in the second charge below, where Zeiger is a party to the coordination correspondence (e.g., P/289, P/377); see also the correspondence that is the subject of the sixth indictment (e.g., P/39); and more). This is sufficient to show that he acted in favor of Harel and the promotion of its interests, that his actions reflected what he saw as the best interests of the company, and as he also understood the position of his manager Zeiger in this regard.
Indeed, in some of the charges, it is attributed that proposals submitted by Gilad on behalf of Harel and on the basis of alleged coordination led to a value and not Harel that would win the project. Zeiger and Harel claimed that this indicates that Gilad acted in order to help his friend Shahar win while harming Harel's interest, and at least with indifference and not in order to benefit Harel. However, these claims ignore the fact that in other projects, the result of the alleged coordination was that it was actually Harel who won (for example, in the fourth, eighth, tenth, and eighteenth charges). The submission of the proposals in the manner in which they were submitted was therefore part of conduct that was intended as a whole for the benefit of the company, and in any case not with the intention of harming it or for the purpose of promoting personal profit. In addition, the argument that Gilad's proposals led to Harel not winning some of the projects and harmed its interests is inconsistent with another claim by the defense that in any case there was no competition in the relevant market and that Harel could not win those projects in any case.