Sometime after Weinschel went on maternity leave, Menashe stepped in and worked to promote the ELA deal with the aim of completing it before the end of 2011 in a way that would win the civil appeal at a discount. Menashe promoted and completed an agreement with Wee, in the amount of $1,035,000, without pricing in the matter. An indictment was filed against Menashe and Shachar for their conduct in connection with the ELA transaction (criminal file 44846-01-19). Menashe was attributed, inter alia, that in February 2012, after the completion of the transaction, he acted to produce two allegedly competing bids for the procurement portfolio, while requesting from Shahar and another company such bids to be dated retroactively to the date of Wei's bid, in order to appear as bids received during December 2011 and prior to the closing of the transaction, even though they were produced only retroactively and two months later, and in order to enable the order to be executed. Menashe confessed to the charges against him and was convicted, among other things, of breach of trust. Shahar was convicted of aiding and abetting breach of trust, also on the basis of his confession (P/129).
The defense raised various arguments on the basis of the conduct in connection with the ELA transaction, including claims that it was a broad conduct of fictitious pricing and that the license renewal was fictitious and that Wee's win in it was clear in advance. As we shall see below, these arguments should not be accepted and do not detract from the incriminating conclusion that arises in relation to the coordination of the subject of the indictment in question or in relation to the other coordination.
- With regard to the license renewal and the ELA transaction, the following witnesses testified during the trial, inter alia: Weinschel, who was, as stated above, a proprietary procurement and software contractor at Maman and who coordinated the proposals on the subject of the license renewal agreement; Natan Koffler (Koffler), who was at the relevant times the head of the software procurement department at Maman and the supervisor of Weinschel (p. 600, paras. 12-13), as well as Menashe. In their testimony, Koffler and Menashe referred mainly to the ELA transaction; Leshem, the procurement manager at Maman, who was in charge of Koffler and Menashe, and others at IAI, were also asked in their testimony about various matters relating to the allegations raised in connection with the indictment in question and the ELA transaction; Yaron Razinsky (Rezinsky), who was a client portfolio manager at VMware, referred in his testimony mainly to the ELA transaction; in addition, Shahar and Oshri also testified, inter alia, in relation to the indictment in question and the ELA transaction.
- Against the background of this general introduction, we will now address the facts that have become clear with regard to the coordination of the proposals submitted in response to the Licensing Renewal Regulations. We will then address all of the defense's arguments, including the arguments raised on the basis of the conduct in connection with the ELA
The Coordination Arrangement Bears the Issue of License Renewal
- On November 6, 2011, Weinschel sent a request to a number of companies, including Wie, Harel, and HP, for a price quote for the maintenance of VMware licenses until the end of 2012. The companies were asked to submit their bids by November 31, 2011 (P/84; the request was sent separately to Shahar (We), Gilad (Harel) and Assaf (HP); a copy of the CBM was sent to Koffler; attached to the application was the file of licenses that needed to be renewed – see P/549 (page two); Weinschel, p. 601, paras. 2-5).
Winschel testified that she was the one who initiated the application to the Licensing Renewal Authority, because she saw that the existing licenses were about to expire, and that it was important to update the licenses at the end of the year in order for a civil appeal to be the updated version of the software; Therefore, it asked for a price quote for the renewal of the licenses for one year, for 2012, when the most important parameter when purchasing a shelf product such as software is the price (p. 603, s. 20 - p. 605, s. 1, p. 602, s. 8 - p. 603, s. 15, p. 632, s. 4-7).