On October 30, 2011 – about a week before Weinschel's request for a license renewal – Shahar sent Winschel a price quote for the renewal of VMware licenses for a civil appeal for the year 2012, for a total of $186,812 (P/90, Shahar addressed Oshri and addressed Winschel and Yossi at the top of the email, referring to Yossi Yakovich, a financier who had participated in the meeting a few days earlier, Weinschel, p. 648, paras. 8-9). Winschel testified that it is possible that even before the issuance of the license, she herself or the factories spoke with Shachar by telephone about the need for a proposal for the maintenance of the licenses, and that is why he sent the proposal even before the request was made by the BLM (p. 646, paras. 14-24, p. 648, paras. 2-9; Koffler, p. 6621, paras. 6-14, where he testified that suppliers can send a proposal for renewal of licenses even before the CBM because they know that they need to renew. and that it "happens", "it is acceptable"; See also Shahar's testimony, p. 2911, paras. 1-2, which supports the fact that the first proposal sent by Shachar was made on the basis of the licensing mix that they recognized in a civil appeal, and later, after receiving the CBM, they checked that what they sent was in accordance with the requirement in Balam, P/549 (Shachar's appeal to Eleanor Moy, p. 2910, para. 28 - p. 2911, para. 2)).
The bottom line: On November 6, 2011, Weinschel approached a number of companies in the National Insurance Institute for the renewal of licenses for 2012, when the companies were asked to submit their bids by the end of November 2011.
- On November 21, 2011, Weinschel sent an updated file of the contents of the licenses in relation to which the price quote was required for the renewal of the licenses. The evidence indicates that the update was brought to the attention of the companies to which it was originally sent in the License Renewal Notice (P/550, N/60 - Winschel's email message with the update to Shachar (a number of licenses of a certain type for Maman was updated from 32 (P/549) to 54 (P/550); the email sent by Assaf from HP explicitly refers to the change in the contents of the content given to him by Weinschel (P/85, see also the detail there, which includes 54 licenses in the relevant line for Maman in a manner consistent with the above; even though the update notice toHP was not submitted as evidence, HP's response unequivocally indicates that the contents update was sent to HP); Weinschel testified that she also sent Gilad and Harel the updated contents demand, p. 665, paras. 12-13, p. 669, paras. 8-11; This testimony of the Guardian, which is supported by the fact that she sent the update to HP as well, should not be accepted; Wei's argument (para. 538 of her summaries) should not be accepted as if the update was sent only to Weiwei because her victory was guaranteed (which contradicts the above evidence) or that the notice of the contents update (P/60) was located only by the defense, and see the actual notice, P/550, which was located by the investigating authority).
- As may be recalled, the companies were required to submit price quotes to the National Licensing Renewal Committee by the end of November 2011.
- On November 27, 2011, HP submitted its proposal (in response to the updated contents) for the renewal and maintenance of VMware licenses for 2012, in a total of $145,000 (P/85, Weinschel, p. 605, paras. 13-18).
- On November 30, 2011, Shachar sent Gilad an email in which he wrote the following: "You have two offers here to send [...] Lana [Weinchel] Maman, apparently Anna won't be there in the next few days, so send to Nathan Koffler...". To the email message, Shachar attached a price quote to the Licenses Renewal Task Force in the sum of $232,442, and in the body of the message he mentioned Koffler's email address (P/88, P/368; attached to the notice was an additional offer to another customer, SCD, which is not included in the indictment; the offer that Shahar sent to Gilad appears to be consistent with the contents update received from Weinschel). Shachar testified that he sent the email to Gilad in order for Gilad to send an offer to Winschel and Koffler at the price that Shachar mentioned (p. 2912, paras. 16-21; Shahar's arguments immediately afterwards, p. 2912, s. 23 - p. 2913, s. 15, as if in order to submit a price quote, Gilad had to perform several months of work in the civil appeal factories in order to concentrate the contents requirements. and that in this state of affairs, Gilad had no practical possibility of submitting an unreliable price quote; It is inconsistent with the evidence from real time, both the fact that the CBM and the details of the contents were sent to Gilad (P/84) and the fact that HP submitted a proposal on the basis of the contents required by the CBM (P/85)).
- On November 30, 2011 – a very short time after the aforementioned – Gilad Levinschel (with a copy to Koffler) sent Harel's price quote to the Licensing Renewal Task Force, writing to Weinschel "at the very last minute." (P/86). The price quote was in the sum of $232,442, i.e., the price that exactly matched what Shahar asked for (Gilad sent the offer as an email in response to the original request of the IDF (P/84), while noting the price at the bottom of the contents table, and without updating the contents that was made in between; the arguments raised by the defense on the basis of the aforesaid will be addressed separately). Winschel testified that Gilad made the offer to her and to Koffler, her boss, because the suppliers also knew that she was going to go on maternity leave (p. 606, paras. 7-14, and in this sense, it was at the very last minute because she wanted to leave an empty table).
Weinschel replied to Gilad after a few minutes, "That's the most you can do?????" (P/87) in order to try to obtain an additional discount from Harel (Weinschel, p. 607, paras. 9-14). Within a short time, Gilad forwarded the email to Shahar and wrote to him, "Make a discount" (P/87). The compromise of this last announcement by Gilad was not fully clarified; Shahar answered with different answers, once claiming that it was Gilad's sense of humor, and later explained that perhaps Gilad wanted Shachar to allow Gilad to offer Winshell a lower price so that Harel would look better in Maman's eyes; p. 2913, s. 16 - p. 2915, s. 1; Either way, these things are not of central importance to our matter. What is important is that Gilad continued to be in contact with Shahar, even after he submitted Harel's coordinated proposal, in a way that also testifies that they acted with consent and coordination.
- On December 1, 2011, Shahar sent Weinschel and Koffler a price quote for the renewal of VMware licenses for the 2012 Civil Appeal Factories, which is a bid by Wei for the Renewal of Licenses (P/552, Shahar, p. 2912, paras. 9-15). Wee's price quote was $175,764 (the offer was in line with the contents update sent by Winschel (P/550, N/60) and see also P/551, internal correspondence in Wei in which Wei employee updated Shachar on the update of the offer following the contents update). In other words, Wei submitted a price quote at a lower price than that matched with Gilad and Harel in order to win the license renewal bill (and without requiring the fact that HP's independent bid was cheaper). The arguments raised by Wee according to which the accuser's reliance on this proposal by Wee constitutes a change of façade will be addressed below (as it appears that they cannot be accepted and cannot change).
- The picture that emerges from the evidence from real time is clear: Weinschel and Maman asked for bids for the renewal of licenses for 2012 – the license renewal contract. Shahar asked Gilad to submit an offer at a price that Shahar mentioned, which was higher than the price of Wee's bid. Gilad agreed to the request and even actually submitted Harel's offer at the price that Shahar had requested. Gilad went on to update Shachar on Weinschel's response to Harel's proposal, in a way that also attests to the coordination arrangement and the fact that it was actually implemented.
- Weinschel testified that she did not know about the correspondence between Shachar and Gilad, that if she had known about the matter, she would have contacted her superiors and the legal office, and that she felt cheated when she was shown the correspondence (p. 607, s. 16 - p. 608, s. 21). Koffler testified that he did not know about the correspondence and that if he had known, he would have thrown Shahar off all the stairs (p. 6621, paras. 1-5). These testimonies were not concealed. The contractor has to do it. No concrete evidence was presented that could indicate that Weinschel, Koffler, or anyone else from the civil appeal knew about the coordination of the proposals.
- For the sake of completeness, it should be noted that on December 1, 2011, Weinschel – the one who issued the license renewal order and to whom the proposals were submitted – went on maternity leave (p. 606, paras. 4-6). No evidence was presented that on subsequent dates there was any continuation of the license renewal order or the proposals submitted in response to the BALAM. These did not mature into an engagement with any of the suppliers or an order from a civil appeal (Weinschel, at p. 620, paras. 1-2, p. 621, paras. 3-16). As we can see below, some time after Winschel went on maternity leave, Menashe – who was not involved in the license renewal campaign – entered the picture. Subsequently, during December 2011, the emphasis and attention were shifted, and Menashe's efforts focused on the ELA deal. At the end of the day, it was the ELA deal that was executed, and not the transaction for the renewal of the license, but for 2012 (Weinschel, pp. 619, 23-24). The fact that the transaction for the renewal of the license – the subject of the license renewal clause – was not carried out does not detract from the conclusion regarding the coordination arrangement that was made between Wei and Harel and the fact that all the elements of the offense were fulfilled. The completion of the procurement process is not one of the elements of the offense.
A Note on the ELA Transaction and the Conduct in Connection with it
- We have already noted above that an indictment was filed against Menashe and Shachar for their conduct in connection with the ELA transaction and that they were convicted in the matter (see paragraph 884 above). The defense raised various arguments on the basis of the conduct in connection with the ELA transaction , including that the license renewal bill – the coordination of which the indictment in question revolved – was "partial" of the ELA transaction or that the license renewal bill "stemmed" from the "tailor-made warrant" issued by Menashe in the ELA transaction (for example, paragraphs 530-531 of the WI summaries).
- Before we address the defense's arguments, let us briefly address the ELA transaction and the facts that have been clarified about it, to the extent that they are relevant to our case.
- We have seen above that the ELA transaction is a fundamentally different business outline from the license renewal transaction on which the indictment is based.
- The evidence presented shows that in parallel with the issuance of a license renewal order for the purchase of VMware licenses for one year (2012), a civil appeal acted to examine the feasibility and feasibility of engaging in an ELA transaction for a number of years and at a significant discount.
On October 26, 2011 – shortly before the application was made to the Licenses Renewal Notice – a meeting was held in a civil appeal with the participation of representatives of Wii and VMware in which the possibility of entering into an ELA transaction was discussed (P/192 (meeting coordination); P/89 (where the meeting is mentioned); Weinschel, p. 612, s. 15 – p. 614; s. 14, Oshri, p. 4613, paras. 12-28).