Zeiger and Harel further claimed that Gilad submitted coordinated bids in order to assist Shahar even in cases where there were customers who were not in his area of responsibility, in deviation from the company's rules, and in a way that could have put Harel at risk and harmed other salespeople in whose area of responsibility the customers were (P/273 in relation to a quote to Cividia at Shahar's request; P/263 in relation to a price quote to Mekorot at Shahar's request; P/102, P/460 in relation to a price quote to Tadiran at Shahar's request; p. 5316, s. 13 - p. 5321, s. 5; p. 5984, paras. 7-16). However, the indictment did not revolve around submitting offers to these clients. The allegations in relation to them do not change the conclusion that in the acts attributed in the indictment, Gilad acted to submit proposals in competitive proceedings to ELTA and to civil appeal within the scope of his jurisdiction, responsibility and discretion, and to promote Harel's interests (for a similar argument in connection with the twelfth indictment, see paragraph 774 below).
Finally, it should be noted that in her summaries, Harel claimed that Gilad was fired from his job at Harel some time after his release from prison (para. 162 of the summaries, supplementary to p. 5573, s. 19 - p. 5574, s. 4). It is possible that she thought that this would support the claim that Gilad acted le-khatḥila that was not in her favor. However, it turned out that this was not the case, and that Gilad continued to work at Harel (p. 6994, paras. 9-12). In any case, Harel's argument does not change anything.
Triple C - Nahum and Naveh are organs of Triple C
- Nahum - As stated, Nahum served on the relevant dates as CEO and owner of Triple C (P/236, paras. 21-22, 35-36). Nahum was responsible for managing all of Triple C's affairs and business. According to the above criteria, Nahum was an organist of Triple C. Nahum chose not to testify at the trial. In their summaries, Triple C and Nahum tried to attribute this to the proceedings taken against him, both in this proceeding and in another proceeding, on the alleged difficulty that arises from this, and especially on Nahum's medical condition. However, no real evidence was brought in this regard, and in particular no basis was laid for the fact that this was a medical condition that did not allow him to testify (and what was presented at p. 160, para. 2 and was not submitted referred to the best of memory, but not to the failure to appear for the meeting that day). Nahum's refusal to testify acts in accordance with his duty (Section 162 of the Criminal Procedure Law [Consolidated Version], 5742-1982). In any event, in their summaries Nahum and Triple C did not dispute that Nahum was an organist of Triple C (p. 6988, paras. 21-23).
- Naveh - Naveh worked at the relevant times as a sales representative at Triple C. In his digital signature that appeared in the margins of e-mails he sent, for example to customers, his position was stated as Sales Account Executive (e.g., P/7). In his role at Triple C, Naveh was responsible for handling a number of large clients, including civil appeals (including ELTA), the First International Bank, Shufersal and others (p. 62, paras. 21-24, and see also p. 63, paras. 23-24, with reference to his role as sales manager). On a formal level, Naveh was subordinate to Chasia Nahum (Chassia), the VP of sales of Triple C (and Nahum's sister), and she was subordinate to Nahum, the company's CEO and owner (p. 66, paras. 20-23). However, in practice, Naveh had direct contact with Nahum. Naveh testified that he preferred to work directly with Nahum and in fact also worked directly with Nahum, while explaining that such direct work with Nahum, who sat one floor above him, even reconciled with the nature of Triple C's conduct as a "family company" (p. 66, s. 24, p. 67, s. 20, with reference to what Bat B/2 said, paras. 71-81; This is despite the fact that the company had about 80 employees at the time, p. 283, s. 19 - p. 284, s. 20; In certain contexts, it is clear from his responsa that Naveh used to update Nahum and not necessarily Chassia, p. 80, s. 22 - p. 81, s. 81, s. 3, in continuation of his words (Bat/2, s. 169-170).
As part of his role, Naveh was responsible for offering computerization solutions to customers in his area of responsibility. With regard to the civil appeal and Elta Naveh, it was he who handled the requests for quotations (p. 63, paras. 6-24, p. 64, paras. 5-16, and P/2 at paras. 47-56). The civil appealers contacted Naveh as their contact person in Triple C for the purpose of handling their requests for price quotes and for the purpose of receiving such proposals (for example, P/154, P/156, p. 1128, S. 13 - P. 1130, S. 20). It was Naveh who was in charge of submitting bids for a civil appeal and ELTA on behalf of Triple C, and it was he who submitted the actual bids for a civil appeal and ELTA (for example, the proposals: P/7, P/23, P/154, and see also P/18). Even if Naveh's proposals required examination and approval by Chasia and Nahum, the proposals he submitted were in the name of Triple C and they obligated and acquitted the company (p. 249, paras. 16-19, following his statement at Bat/2, paras. 164-168; see also Naveh's suggestions to Elta within the framework of the seventh indictment, P/5, P/7). In these circumstances, Naveh should be considered, in accordance with the functional test, and taking into account his role as the person who handled the requests for quotes and as the person who filed them for a civil appeal and as an organizer of Triple C insofar as we are dealing with the submission of bids for the competitive proceedings that are the subject of the indictment.
- Nahum and Triple C claimed in their summaries that Naveh was not an organist of Triple C. In this context, they claimed that Naveh was not a manager in the company; Because even according to the accuser, Naveh was only a sales representative and not a sales manager; that he was subordinate to Hassia, the VP of Sales, and not to Nahum, who had the authority to determine in particular in all matters relating to a civil appeal (p. 66, s. 22 - p. 67, s. 20, even though there Naveh also testified that in practice he worked directly with Nahum); that there was a regular employee who sat on the sales floor, where Chassia also sat, and not on the management floor (p. 284, paras. 11-20; and see also the reference to P/2, paras. 312-315, where Naveh referred to himself as the "youngest in the group" in terms of status); that Naveh was not authorized to undertake on behalf of Triple C, as he testified that he could not issue price quotes without the examination and approval of Chassia and Nahum, and that over certain sums Nahum's signature was required (p. 249, paras. 16-18, p. 150, s. 24-p. 151, s. 3; that even though it emerged from his remarks that at times there was no more than a routine, standard transition, so that the proposals he proposed were approved without intervention or position, there, with reference to P/2 S. 360-367); that it was Nahum who was in contact with IBM's people (p. 150, s. 24 - p. 151, s. 3); that Neve was fired in October 2010 and after less than three years of work at Triple C, inter alia, because he did not meet sales targets (p. 65, s. 9 - p. 66, s. 12); and that Naveh was unable to execute a business relationship for mutual procurement between Triple C and Wee or Harel in view of the murky relationship between Nahum and the CEOs of the other companies (p. 80, paras. 10-18, P/2, paras. 302-308).
- The arguments raised by Nahum and Triple C do not detract from the conclusion that Naveh was, at the relevant times, an organ of Triple C in all matters relating to our case. Naveh was responsible for the civil appeal and for handling requests for quotes. In this context, he worked directly with Nahum, the company's CEO, its owner and the tone for it. He was the contact person for the civil appeal parties, who saw him as the address for their inquiries in all matters relating to the competitive proceedings that are the subject of requests for price proposals. It was Naveh who was in charge of submitting the bids for a civil appeal on behalf of Triple C, and he was the one who actually submitted the bids. Even if he did not have full discretion and even if the proposals were required to be approved by others in Triple C, the proposals he submitted, by virtue of his position and the scope of his position, obligated and ultimately earned Triple C. This is even if Naveh did not hold a senior position and even if he did not have authority in certain aspects, such as vis-à-vis IBM. In these circumstances and according to the criteria detailed above, Naveh was an organist of Triple C as far as the submission of bids in the competitive proceedings that are the subject of the indictment.
- Nahum and Triple C further claimed that Naveh had acted in contravention of Triple C's guidelines. In this context, it was argued that although Triple C had no interest in continuing to sell to a civil appeal, Naveh himself continued to try to sell to a civil appeal (P/2, paras. 64-70, where Naveh described that Triple C's position stemmed from a decline in the level of profitability and due to the redirecting of activity in other directions) and that Nahum rebuked him more than once for devoting too much time to Elta (p. 285, S. 7 - p. 286, S. 5). Even these arguments do not change the conclusion that in the circumstances of the case, Triple C should be held liable for Naveh's actions. Naveh acted in the course of fulfilling his duties, in favor of Triple C and in order to promote its interests, as he perceived them. In any case, he did not act to harm Triple C or to make personal gain. As stated above, Nahum himself chose not to testify. Nor was any other witness brought on behalf of Triple C in a manner that was in accordance with its obligation. As to the substance of the claims, even if the evidence indicates that at a certain point Triple C believed that it was in its business interest to reduce the scope of its activity vis-à-vis the civil appeal and Elta, in practice Triple C continued to act later on as well against the civil appeal and Elta in various projects (p. 86, paras. 17-20; p. 165, paras. 22-27; and see, for example, paras. 131 onwards of the summaries of Nahum and Triple C in relation to the seventeenth charge (from the beginning of 2012 and after Naveh's departure). and the conduct of Triple C by Naveh within the scope of the seventh indictment (August 2010), and see also below at paragraph 487). Moreover, apart from a general argument regarding the company's approach or its business policy, Nahum and Triple C did not claim in their summaries that in his conduct in connection with the price quotes that are the subject of the charges, Naveh acted in contravention of an explicit instruction given to him or despite the objections of any of his superiors in advance or retroactively. In some cases, the evidence showed that the opposite was true (see, for example, p. 81, paras. 3-17, on the basis of P/2, paras. 169-179, where Naveh testified that he updated Nahum on the results of the meeting and the understandings of the first indictment, and that Nahum did not object to the understandings themselves).
The charges in the indictment
- We will now turn to the charges in the indictment - eighteen in number - in their order.
- Prior to the hearing, we note that the defendants raised a number of defense arguments with general-broad applicability on the basis of arguments regarding the conduct of the various entities in the field of computer procurement.
Among other things, they pointed out that sometimes the technical manager of the project in a civil appeal worked with one of the suppliers in the early stages in order to characterize the required solution and configuration, and that in this state of affairs, when the handling was transferred to the procurement bodies later on, in practice the procurement personnel had no real possibility to purchase the contents from another supplier. In these circumstances, it is argued, the requests of the procurement personnel in the Balam proceedings - a request for quotes - were only for the sake of appearances, in the form of a "show" and in order to fulfill the internal procedures of the civil appeal and to "arrange the procurement file". Similar arguments were raised in relation to cases in which the purchase of equipment that constituted a continuation or expansion of a system that was previously purchased from a certain supplier was involved.