In the documents from real time that were submitted as evidence, there is no reference to any work by Shachar or Wei vis-à-vis the project regarding the storage systems that are the subject of the UAV or prior to the UAV. To this, it should be added that preliminary activity by a supplier vis-à-vis the project does not guarantee a win, and cannot justify coordination (see the discussion in paragraph 276 onwards above).
- The defense argued that the purchase price was closed in advance: once it was claimed that the price was closed directly between IBM and a civil appeal (referring to the testimony of Menashe, p. 1495, paras. 1-2); It was once claimed that the price was closed between Shachar and Menashe even before the request for an offer from Harel at Balam Storage Systems (with reference to Shahar's testimony, p. 3036, s. 16 - p. 3037, s. 9). According to the defense, the arguments that the price was closed in advance and even before the BLAM are sufficient to support the fact that the request was made only for the sake of appearance and in view of the civil appeal procedures that necessitated the receipt of a number of price quotes (Shahar, p. 3035, paras. 10-18).
Here, too, no real basis was laid for the evidence to be claimed. Here, too, the argument does not justify coordination or legitimize it.
The documents do not relate in any way to IBM's involvement in IAI's purchase price, let alone to close the price with it in a final or binding manner. In his testimony, Menashe referred to a "discount agreement" with IBM relating to the closing of the price, while qualifying his words ("Don't catch me, because I did not work with IBM", p. 1495, paras. 1-4). His testimony clearly showed that this was nothing more than a hypothesis, and that he had no real memory of the matter. Such an agreement relating to Balam Storage Systems was not presented, and in any case neither was the discount rate or price by virtue of it. The defense also did not refer in the summaries to the parts relating to the charge under discussion of such an agreement. This reflects on the weight that can be given to the matter (document N/131 of 2009, to which the defense referred, does not relate at all to prices or discounts). The claim raised by Shachar in his testimony that the price was closed in advance between him and Menashe is also not supported by real-time documents. There is no reference to the price that preceded the issuance of the Bulletin, and in any case to the price that was agreed upon and closed (in the testimony of Oshri, p. 5220, para. 22 - p. 5221, para. 7, there is nothing to change; Oshri himself said that he did not remember the context and referred in an unclear manner to the negotiations with Netapp). The allegations are also inconsistent with Menashe's testimony that he was angry when he learned of the coordination and that he felt that Gilad and Shahar were "making a fortune" in that the civil appeal was required to pay a higher price than would have been received without the coordination (see paragraph 938 above), or with Shahar's testimony according to which if Harel had submitted a cheaper offer, it might have been necessary to lower the price of her bid (see paragraph 935 above). If there was a real claim that the price was closed, what is the point of coordination? There was no response from the defendants. The conclusion is that there is no basis for the defense's claims and that the coordination is intended to ensure Wei's win and remove any fear of the need to lower the price. Therefore, these arguments must also be rejected, and they do not change the picture that emerges from the evidence, according to which Menashe and Maman sought to receive truthful offers to the Storage Systems Defense Systems, and the incriminating conclusion that arises from the improper coordination of the proposals that was made behind their backs and without their knowledge.
- The defendants claimed that it was IBM that determined who would provide to finance the storage systems, and that it controlled the process. The defense tried to build in this context, inter alia, from what Menashe said in his testimony (e.g., pp. 1496-1497). The defense pointed out that Menashe had contacted Lavid from IBM even before the question of which of IBM's marketers could respond to the BLM (N/130) and that Lvid forwarded the correspondence, as well as the configuration he received from IBM, to Shachar only (P/134) in a manner that testifies – so it is claimed – that Lvid "intended" that it would be worth it to win the IBM (Menashe, 1509, paras. 1-8). Later, Menashe approached Lavid with a request to expedite Wei and Harel to submit proposals to the Storage Systems Division (P/132), and Lvid replied that he would take care of it (ibid.) and later made sure that Menashe had indeed received offers (P/257). The defense argued that this showed that IBM was in control of the process and that the proposals were requested only because "two proposals are needed" (Menashe, p. 1506, paras. 21 – p. 1507, para. 1, where after replying several times that he did not remember, he replied that the defense had offered in weak language, "it could"; However, see on the other hand his words at p. 1520, s. 22 - p. 1521, s. 6, where he did not confirm that Harel could not answer the BLAM and that he had asked her for an offer only because of the procedures). On the basis of the aforesaid rule, the defense argued that IBM was the one who determined the supplier that would win the VAM Storage Systems, that Maman went out with Balam only for the sake of appearance and asked for proposals only because of IAI's procedures, and that Lvid pressured bids to be submitted in order to assist in a civil appeal and to "pass the procurement process" (the defense also referred to the testimony of Lavid, pp. 6465-6464, where he referred to the matter in a general way, stating that he did not know whether the civil appeal had no intention of buying from another supplier; p. 6454, s. 22, p. 6455, s. 1, where he noted in general terms that a request from a supplier to submit a proposal to a client who needed more offers in order to sort out the case was acceptable).
The arguments that IBM determined the winner of the Storage Systems Championship cannot be accepted, and the claims do not change the conclusion regarding the improper coordination. The same is true with regard to the claim that the proposals in the Balam were requested only for the sake of appearances.