Nahum chose not to testify at the trial. His refusal to testify, for which there is no sufficient explanation, acts in accordance with his duty (section 162 of the Criminal Procedure Law, and see paragraph 67 above). Nahum's interrogations at the Competition Authority were submitted at trial (and for our purposes, the investigation marked P/237 is particularly relevant). Since Nahum did not testify, his foreign statements in the interrogations are inadmissible as evidence against Zeiger and Harel (e.g., Criminal Appeal 11426/03 Huamdeh v. State of Israel, at paragraph 27 of the judgment of the Honorable Justice (as he was then called) A. Fogelman (December 31, 2008); Yaniv Vaki, Law of Evidence, vol. 2, pp. 686-687 (Adv. Tova Olstein ed., 2020)). Therefore, these will not serve their duty (although in their summaries regarding the indictment in question, Zeiger and Harel did not raise such a claim, and even sought to build on some of Nahum's foreign statements).
Shekanevsky, a procurement buyer at Maman who was involved in the procurement proceedings for the MPR project, referred in his testimony to the facts relating to the indictment in question. In addition, the parties referred in their summaries, inter alia, to the testimony of Peretz Mefman, and to the testimonies of Orshitzer and Hershkovitz of IBAM.
- Against the background of this general introduction, we will now turn to the facts that have become clear in relation to the indictment in question.
The Integrated MPR and the Privileged Coordination
- As stated above, the matter of the indictment in question concerns ELTA's intention to combine the X and Unix servers for the MPR project , and the alleged coordination in this regard during the month of February 2012.
- On January 31, 2012 – apparently even before the intention to perform a combined procurement of the servers for the project was formulated in the project – Harel submitted a price quote on its behalf to the project representative (P/79, Shkanevsky, p. 959, paras. 1-2, it is possible that this is an initial price estimate for the project that did not reach the procurement authorities). The price quote referred only to X servers and not to P servers (Unix) (Shkanevsky, p. 959, paras. 3-8). When it comes to X servers, the proposal referred to both non-blade servers and blade servers. Harel emphasized in her arguments that the proposal included a discount according to the Comptroller Agreement (51.8%) for all the servers, even though only some of them came under the Comptroller Agreement (Zeiger, p. 5338, Q. 21 - P. 5339, S. 3; Shkanevsky, P. 961, S. 8-11, P. 959, S. 21-22; Later on, and after the split of the IDF, Harel submitted to Mamen an updated offer for the X servers (P/112), which was based on the Comptroller's assumption of only one component. and not to the other components of the contents, in a way that undermines the claim that Harel reserved in advance against IBM a compliant assumption for all the components and under its claims of a pre-guaranteed advantage).
In doing so, Harel sought to find support for the fact that she was the one who had a foothold and an advantage in the project, and that at that stage it was not yet required that one supplier provide all the equipment for the project – both X and P servers .
- At some point, the project at Elta decided that it wanted to purchase the computing equipment required for the project as a whole – both X servers and P servers – combined, from one supplier (see, for example, Zeiger, 6039, s. 9, p. 6033, s. 16-17 – the customer wanted to buy one unified system from one supplier; p. 5339, s. 14-16, Shkedi made it clear to Zeiger that the project's demand was for a unified response; Shkanevsky, p. 949, 12-19; And in relation to Nahum also P/237, S. 521-522, Elta asked for the two types of servers together, S. 665 Elta put both the Unixes and the X's in one tender). The project's demand for integrated procurement came to the attention of the suppliers (ibid.; see also: P/218, paras. 148-149, N/91, Shkanevsky, p. 963, paras. 16-19). The evidence shows that the Unix servers constituted about one-third of the project and the X servers constituted about two-thirds (e.g., P/123, email from 8:50 p.m.).
- This was followed by the correspondence between Nahum and Zeiger, which is at the center of the indictment in question (P/123 (the correspondence in its entirety); and P/326-P/339 (fragments of that correspondence)).
As we shall see below, the evidence from real time and the testimonies paint a clear picture according to which an arrangement was made between the parties. According to the arrangement: Triple C and Harel will cooperate in supplying the servers required for the project. The parties will submit two coordinated bids to Elta, so that the price of Triple C's bid will be higher, and Harel will win and purchase half of the procurement content from Triple C. In this way, the parties will divide the profits of the sale to ELTA, all while concealing the matter of coordinating the bids from ELTA.
- Because of the importance of this, we will present the email correspondence between Zeiger and Nahum in full:
(1) On February 13, 2012 (15:35), Nahum sent Zeiger an email on the subject of "Elta - The MPR Project" in which he wrote: