In addition to the aforesaid, Wei and Oshri pointed to additional indications that support their position on the claim that the Mapi tender that is the subject of the indictment was a fictitious tender. Among other things, they argued that there was room to disqualify the bid submitted by A.M.T. for the tender because of a reservation that was included in it on the issue of liability (P/78, p. 23 and p. 30, where it was noted in EMET's proposal that according to Netap's policy, the warranty on the shelves is derived from the liability of the machine itself; and see the testimony of Adv. Kirshner, pp. 6415-6419; Rubinstein, p. 3707, paras. 1-8). The failure to disqualify EMET's bid despite a defect in it – this is the claim – testifies to the fact that the MAPI tender was "tailor-made" and "completely false" (paragraphs 334 and 354 of the Wee summaries). It was further claimed that at certain stages, after the Mapi tender was issued, Koren acted to remind suppliers who had not yet done so to purchase the tender documents (P/75, N/59) and that he testified that he was concerned that if there was only one bid it would not look good and might "screw up the tender" (p. 555, s. 31 - p. 556, s. 9, p. 593, s. 9 - p. 594, Q. 23). This, too, is the argument – is sufficient to testify that the Mapi tender was a fictitious tender (paras. 332-333 of the Wee summaries).
- All the arguments must be rejected. In any event, they do not justify the coordination of bids in a tender or to qualify it. On the merits, Koren and Mapi sought to hold a real competition and receive independent and genuine offers in order to achieve the best result for Mapi and the cheapest price. This is how the tender documents were drafted. The coordination of the proposals undermined this. We will discuss the matter.
- First, Wei's win in the Mapi tender was not guaranteed and there is no basis for the claim that Mapi had no other option but to purchase the shelves from Wei.
The Mapi tender was drafted in such a way that the bidder whose bid would be the cheapest would win (see paragraph 788 above). Rubinstein clearly testified that even if she estimated that EMET's chances were lower, and even if it was possible that Koren would prefer Wei as the one who had previously supplied "The Brain," if she had submitted a cheaper offer than Wee's, it is clear that EMET would have won and Mapi would have purchased from her. In her words: Even if she would bid for "less shekels", "they would buy from me, it's a government tender... He had no choice" (p. 3680, paras. 16-18; See also Oshri himself's own words in his interrogation, P/214, paras. 529-533, paras. 638-645, paras. 692, which show that even if Levi had an advantage, according to him, A.E.T. could have fought and competed and put Wei in danger). This is even if, in the event that someone who did not provide the 'brain' of the system wins, difficulties may arise later on, for example on the issue of liability, which the client (Mappi) did not think about or gave weight to when he issued the Mapi tender. It should be emphasized: this matter is left to the discretion of the client, he is the one who considers his considerations and it is he who drafts the tender documents. The bidders' assessments of what is good or possible from the point of view of the bidder do not permit them to coordinate bids and thwart the process in which the bidder embarked.