It was further argued that where the project manager defined that the content of the required equipment was made by a certain manufacturer, the manufacturer acted to give a certain supplier priority. In many cases, the manufacturer of choice was IBM, which allegedly gave priority to one of the suppliers. In this context, the defense emphasized IBM 's Special Bid, SB mechanism, which was brought before the Competition Authority and was granted an exemption from the Competition Commissioner at various times. In essence, the defense argued that this mechanism and the prioritization given to one of the suppliers had eliminated competition between the suppliers. Therefore, it was argued, inter alia, that the alleged coordination arrangements did not harm competition in any case. Similarly, claims were raised about the involvement of the manufacturers in determining the final price vis-à-vis the customer.
Additional arguments were based on an agreement of the Accountant General, to which a civil appeal was joined in 2007 with respect to the purchase of servers and ancillary components by suppliers that won the Accountant General's tender (N/10, N/77, the Accountant General's Agreement). It was argued that if certain conditions were met, a civil appeal should have purchased certain equipment made by IBM only from Harel, at a significant discount (51.8% of the IBM price list). Therefore, it was argued that when the contents of the required equipment came within the scope of the Comptroller's agreement, Harel's win was guaranteed and there was no real competition.
- These arguments and similar arguments in essence - the essence of which is the argument that due to one or another characteristics of the market there was no possibility of real competition between the suppliers and that the BDS proceedings were only for the sake of appearance - will be discussed at length below. This is done within the framework of a particular indictment in which it will be relevant, and on the basis of the relevant factual basis between the definitions of a separate chapter.
- In the examination of the delay, it should be noted that the arguments should not be accepted both on the factual and legal levels, and they do not justify naked price adjustment arrangements that have no legitimate purpose. These are the following arrangements within the scope of the absolute holdings in section 2(b) of the Competition Law. Even if, in the circumstances of one or another indictment, one of the suppliers had an advantage on some grounds, this would not have eliminated the feasibility of competition, and the suppliers were not entitled to coordinate their proposals in order to thwart competition and to remove the uncertainty underlying the competition. Moreover, and as we will see in detail below, the civil appellants consistently testified that they did not know about the coordination of the proposals in the proceedings that are the subject of the indictment, that they sought to receive genuine offers and not coordinated futile offers, and that if they had known about the coordination, they would have acted differently and stopped the procurement process. As we shall see below, these testimonies must be accepted that no concrete basis has been laid to contradict them.
The first charge
The First Charge: General Coordination - Projects at IAI
- The first indictment was directed at Shahar and Wee, Gilad, Zeiger and Harel, Naveh and Triple C. According to what is alleged in this indictment, as of May 5, 2009, the aforementioned defendants were parties to an arrangement whereby the companies accused in this indictment - Wei, Harel and Triple C - would share winnings in IAI's projects. It was claimed that the defendant companies had determined to divide the projects so that companies that had not begun handling the project would not submit price quotes or would submit bids higher than the bid of a company that had begun handling the project. The companies even agreed to balance the winnings between them by reciprocating one company from the other. Oshri and Nahum were credited with not supervising and did everything possible to prevent an offense under the Competition Law. As stated above, the case of Shahar, Gilad and Naveh ended in plea bargains in which they were also convicted of what was attributed to them in this charge. With regard to the remaining defendants, Levy, Zeiger, Harel and Triple C are attributed an offense of a party to a restrictive arrangement under section 47(a)(1) of the Law as drafted at the relevant time, together with sections 2(a), 2(b)(1), 2(b)(2), 2(b)(3), 4 and 55a(b) of the Competition Law. In relation to the defendants, the indictment refers to section 23(a)(2) of the Penal Law. Oshri and Nahum are attributed the responsibility of officers by virtue of Section 48 of the Competition Law.
Discussion