The second is that it was NetApp that dictated in advance the outline in which Wei and EMET operated: NetApp was the one who instructed Levi to purchase the shelves that are the subject of a tender from EMAT and not directly from ATP, and it was it that organized the course of things so that EMET would allow Levi to win the MAPI tender.
- We will now address these arguments and it seems that they should be rejected.
The claim that NetApp closed the final price with Mapi
- As stated above, the defense argued that Netap, through Noy, had settled with Mapi the final price at which Mapi would purchase the shelves that are the subject of the Mapi tender (e.g., paras. 313, 339-340 of the Wee Summaries).
The defense sought to find support for this claim with various evidence. In this context, she emphasized that in the email that Shachar sent to Rubinstein, in which he put in writing the coordination arrangement with EMET (P/82), according to which "on the subject of a mapping tender, we agreed that we would win and we would purchase the equipment from you," Shachar noted that "regarding the price, we will agree later after we understand from Ronen [Noy] what was done with Alex [Koren] from mapping." According to the defense, this trial testifies that Noy and Koren closed the final purchase price between them by the Mappi. Wei and Oshri also referred to passages in Shachar's testimony where he testified that Noy told him emphatically that "it is forbidden to touch the price, not even the shekel" that the price is closed with the customer (Mappi) and that it is forbidden to deviate from it up or down (p. 3058, s. 17-25, p. 2895, s. 30 - p. 2896, s. 21, see also Shahar's testimony, p. 3196, s. 16 - p. 3197, S. 2). According to the defense, Noy's testimony on this matter was not reliable and Noy did not rule out the possibility that he had agreed with Mapi on the final price (p. 6180, paras. 1-7), and therefore Shachar's testimony on this matter was not contradicted.
- The arguments are to be rejected. No real basis was laid for them in the evidence.
- Wei and Oshri call the email P/82 what it doesn't have. The words that Shachar wrote to Rubinstein do not relate to the "final price" that was closed between Noy and Koren, and the defense's arguments that it was a "final price" were intended only to support a far-reaching claim regarding a fictitious tender in which the price of the winning bid was determined in advance, before the bids were submitted, a claim for which no basis was laid by the evidence.
- Koren testified that even before the approval to issue a tender from Mappi, he contacted NetApp and asked her for an estimate of the expected cost of the discs, and that he did not close any price with the manufacturer (p. 561, paras. 7-12, where he added that it is clear that he did not close a price with NetApp, since "if I were to close a price, why would I have to go out for a tender?"; See also: p. 552, paras. 15-26, p. 591, paras. 3-9). This testimony must be accepted.
- Noy testified that he did not close a price with Koren or the identity of the winner, because it could not be, and that at most he gave Koren a price estimate in relation to the cost of a shelf (p. 6273, paras. 9-17 The rest of the remarks indicate that he also said the same in his interrogation, p. 6273, paras. 26-32; p. 6269, paras. 17-27, it is possible that he gave Koren an estimate).
Noy testified that as a rule, he can give customers a price estimate but not a final price, since at the end of the day it is the supplier – NetApp's partner who distributes its products – who decides whether to sell and at what price (p. 6112, s. 22-30, p. 6116, s. 27-31, p. 6147, s. 14 - p. 6148, s. 12; indeed, Noy confirmed that there were cases in which NetApp acted with the customer together with the supplier-partner and was also involved in the final prices, p. 6169, paras. 21-24, in connection with N/407; Evidence was also presented in relation to cases in which NetApp was involved, together with the supplier, with the customer, including involvement in relation to the final price, e.g., N/398, Noy Testimony, pp. 6114-6116; N/403, pp. 6144-6147; However, no such evidence was presented in relation to the Mapi tender and no basis was laid for the claim that Noy closed the final price in the Mapi tender with Koren). The argument of Wei and Oshri that Noy admitted that it was possible and agreed upon the final price with Koren does not arise from the part of the testimony to which they referred (p. 6180, paras. 1-9, where Noy testified that he did not remember the conduct with Koren in the CPI tender and that at most he received from the CPI its assessment in relation to the budget that it did not want to pass, in the sense of a maximum price beyond which no purchase would be made. without any reference to the final sale price as claimed).