The same is true of the claim that Koren exerted pressure on suppliers to submit a bid for the Mapi tender in order to avoid a situation in which a single bid would be submitted to the tender. Koren testified that he wanted to receive as many offers as possible, from which the cheapest bid would win: "I want five prices in the end and I will take the cheapest one" (p. 556, s. 7). Even if Koren reminds some of the suppliers once again that it is possible to purchase the tender documents, in order to receive as many bids as possible or in order to avoid a situation of a single bid, no foundation was laid for any defect in his conduct (and see Adv. Kirshner's reference to the words in her testimony, p. 6421, paras. 17-21, where she referred to the extra caution that is taken where it is a single bid as a possible explanation for the desire to receive a number of proposals; p. 6421, S. 28-31). Even the claim that Koren exerted improper pressure on a supplier who was not interested in approaching and who had no chance of winning was not supported by the evidence (see also the testimony of Adv. Kirshner, at p. 6420, paras. 23-27, there is no reason to approach a supplier who is not interested in approaching him and asking him for a futile offer, and Koren would not have done so). Therefore, even this argument does not support the claim of a fictitious tender.
Another claim revolved around the fact that Adv. Kirshner – in response to a request for documents sent to the Mapi from the investigating authority – "marketed" Mappi, attached a link to the Mapi website about the information and possible uses thereof, and also mentioned an educational tour program that included accommodation at the hotel (P/311). The defense argued that this was "suspicious" conduct, that Adv. Kirshner sought to "endear" her interrogators in an illegitimate way, and in a manner that testifies that Adv. Kirshner knew that the Mapi tender was a fictitious tender (paragraph 335 of the Wii summaries). Adv. Kirshner referred to the claim in her testimony, categorically denied it and explained well her own conduct and the conduct of the Municipality in all matters relating to the Mapi tender in a reliable manner (for her reference to the claim, see p. 6423, s. 17 - p. 6425, s. 9). Beyond that, this is a speculative claim, which does not make much sense, and does not provide even remotely an evidentiary basis for the claim that the tender was fictitious.
- Fifth, even ignoring the rule of the above, on the legal level we are dealing with the coordination of price quotes for a tender, i.e., a restrictive arrangement that falls within the scope of the absolute presumption set forth in section 2(b) of the Law as one that establishes libels to harm competition, and which is prohibited by nature. This is sufficient to bring about the rejection of the defense's arguments raised by Wei and Oshri, which do not justify or legitimize him. The defense's arguments are, in essence, claims that in fact there was no feasibility of competition in the Mapi tender, and therefore the coordination of the proposals did not result in harm to competition, in a manner that attempts to undermine the absolute presumptions and is liable to empty them of their content (see and compare: the Ariel case at paragraph 20). This, regardless of the fact that the defendants did not point to any legitimate reason for acting to coordinate.
- Therefore, the defense's arguments that the Mapi tender was fictitious and that Wei's win was guaranteed should be rejected.
- In order to complete the above, it should be noted that the defense's arguments ignore the picture of things with regard to the storage systems at the Planning Authority, even before the 2010 tender. We have seen above that prior to Wei's win in the 2010 tender, it was EMET that supplied the NetApp storage systems to Mapi and it was it that managed the site at Mapi (see paragraph 784 above). Rubinstein testified that A.M.T. lost the 2010 tender due to a "mistake of guarantee" and that the loss "hurt" it (p. 3682, paras. 3-7). It was clear from her testimony that le-khatḥila – and before the coordination arrangement between WI and A.M.T. was made – Rubinstein intended to submit a competitive bid to the MAPI tender "as usual" and that A.E.M.T. could have won the MAPI tender (p. 3638, para. 18 – p. 3639, s. 3, p. 3680, paras. 16-18). In other words, the competition for Mapi did not begin in the 2010 tender. Prior to that, EMET was the one that provided the storage to the Mapi. M.T. had an incentive to compete and try to regain a customer it had lost due to a loan error. The coordination arrangement thwarted this possibility of competition for the possible fruits of the customer (Mappi).
Allegations of NetApp Involvement
- Wei and Oshri also claimed Netapp's involvement in the conduct in connection with the Mapi tender. In this context, the defense raised two main arguments:
The first is that NetApp, through Noy, closed the final price at which Mapi would purchase the shelves that are the subject of the Mapi tender. In essence, this is a different disguise of the claim that the Mappi tender was a fictitious tender, that the price of the bid that would win was determined – according to the claim – in advance between the manufacturer (Netap) and the ordering party (Mappi);