The arguments were answered in the above discussion. Beyond that, we would like to emphasize once again that the claims of Nahum and Triple C contradict the clear picture that emerges from the documents from real time. After discussions between them, in email correspondence and phone calls, Nahum himself realized in real time that Zeiger agreed. He wrote to Zeiger, "Great. closed" while noting that he was beginning to "roll" the matter, to which Zeiger also responded, once again, with consent (P/123). Immediately after the correspondence with Zeiger, Nahum informed his people in Triple C that the matter had been "agreed with Harel" while updating the details of the agreement: "half and half" and adding that the matter was "also agreed upon with Orshitzer" (P/187, P/500). This, and all of the above, is sufficient to bring about the rejection of all the claims.
Moreover, the claims of Triple C and Nahum contradict what Nahum said in his interrogation with the Authority time and time again, and contrary to the interest, that Zeiger agreed (P/237, paras. 619, "he agreed" at paras. 669-670, "he is ready," pp. 749-751, "he agrees as at the beginning"; S. 754: "He wrote to me, I understood, I receive"; S. 798-799, "This is what I agreed with Zeiger and Zeiger agreed", S. 803 - these words are admissible against Nahum and undermine his arguments; See also the words of Nahum Bat/237, paras. 640-647 that Orshitzer authorized Triple C to sell to Harel in order to sell it to Elta).
To this it should be added that contrary to what is claimed, the parties were well aware of the procurement content required for the MPR project (see, for example, N/79 submitted by Harel to the project on January 31, 2012, which refers in detail to the contents of the X servers; see also the reference to the ratio between the Unix servers and the X servers in correspondence P/123). The parties had the details required to reach an understanding and an arrangement, as they had done in practice. Zeiger and Nahum reached an understanding between them after Nahum clarified at Zeiger's request the arrangement with its details – including the submission of coordinated proposals while concealing the matter from Elta – and even presented a numerical example of clarifying the matter of the purchase of the contents from Triple C (see also Zeiger's testimony that the transaction could have been executed by means of a purchase from Triple C "unequivocally", p. 5361, s. 15 - p. 5362, S. 2). In these circumstances, the claim that the consent was not "sufficiently detailed" should also be rejected. In this context, we will recall that the definition of the element of "arrangement" in the Competition Law is broad, and that it has been ruled that a minimum level of common understanding is sufficient for the purpose of creating it, and that it is not subject to the ordinary rules that apply in contract law, including the requirement of specificity (see paragraph 6 above). In the agreement reached by Zeiger and Nahum, the demand for an "arrangement" is clearly met.
- Triple C and Nahum further argued, in a close context, that the civil appeal did not "publish" the combined MPR tender, that according to the accuser itself, it was only an "apparent deal", that ELTA did not contact the suppliers with a formal request to receive quotes for the combined procurement, and that at the end of the day the MPR was "not born at all" and was not executed, and instead of the aforesaid, it was split into separate procurement requirements (e.g., section 126(1), 132, 144, 159 for triple C summaries). However, this does not change anything. We have seen above that at some point the project at Elta decided that it wanted to purchase the servers in combination, that the project's demand came to the attention of the suppliers and that this was made clear to them (see paragraph 965 above). Afterwards, Zeiger and Nahum reached an arrangement between them. Thus the foundations of the offense were formed. A formal request for a price quote is not one of the elements of the offense, and a restrictive arrangement can be formulated even without a formal request for a price quote (see and compare the discussion in paragraph 877 above and the references therein). Even the fact that at the end of the day the combined procurement system was split into separate procurement requirements and was not carried out does not change the conclusion regarding the existence of the elements of the offense. Zeiger and Nahum were parties to a coordination arrangement that establishes a conclusive presumption of libels to harm competition. The execution of the arrangement and its actual implementation are not among the elements of the offense, and this is perfected even without the arrangement being actually executed and without any action being taken to implement it (see paragraph 11 above). Moreover, at the time the arrangement was made, the parties (and also ELTA) did not know that the procurement demand would be split, and in any event, at that time, libels arose to harm competition insofar as the combined LTA was carried out and to the extent that coordinated offers were submitted to ELTA.
- In view of the above, the claims of Nahum and Triple C should also be rejected and it should be determined that an arrangement was made between the parties.
The arguments regarding the content of the arrangement should not be accepted: the arrangement revolved around coordinating price quotes, and this is what the parties sought to conceal from Elta
- Nahum and Triple C claimed in the summaries that Nahum's intention in the email correspondence with Zeiger (P/123) was not to coordinate price quotes, and that Nahum's statement that "they must not know" does not refer to the intention to conceal coordination.
In this context, it was argued, inter alia, that the correspondence reflects no more than an attempt by Nahum to force Zeiger to divide the transaction that is different from the relative share of each of the parties in it, when Nahum demanded that Zeiger pay him more in light of Zeiger's desire that Harel be "at the front" of the transaction (P/237, para. 614); In other words, Nahum tried to increase Triple C's share at the expense of Harel but not at the expense of IAI; Because in Nahum's words, "I give higher bids than yours in coordination" and "you win," he did not mean to coordinate price quotes, but rather that Triple C's offer alone would be higher than Harel's offer, because Triple C cannot be submitted at the Comptroller's prices, and subsequently it was argued – it seems – that the aforementioned coordination is with IBM (with reference to P/237, paras. 695-699; See also N/80 where Chasia of Triple C Lamman, after splitting the integrated MPR, announced that it would not submit an offer to the X servers because it did not receive good prices); And that when Nahum wrote to Zeiger, "It is forbidden for Elta to know," he meant that Elta must not know about the mistake she made in making a combined acquisition of X and P servers, and he did not mean that the coordination of offers should be concealed from Elta.
- These claims must be rejected. They have no real grip on the evidence. They do not reconcile with the documents from real time, they do not make sense, and they contradict what Nahum said in his interrogation against his interests, especially since he chose not to testify at the trial.
- Nahum wrote to Zeiger: "I give higher offers than you in coordination," "You win," and that they must not know." The matter is clear, explicit and unequivocal. The claims of Nahum and Triple C are inconsistent with the Bible. These claims are nothing more than an attempt to retroactively get rid of incriminating correspondence. Nahum himself did not testify at the trial and did not bother to explain the matter. This is in accordance with his obligation. We have seen above that Zeiger himself did not participate in any real way in his testimony because the intention was that the parties would coordinate the prices of the bids so that Triple C would submit a high bid that would lead to Harel's win, and that this should have been concealed from Elta (see paragraph 977 above). In fact, in his interrogation as well, Nahum ultimately confirmed that the intention was to submit two coordinated proposals:
"Q. This means, as mentioned above, that Harel submits a higher offer in coordination with you, they win that their offer to Elta is at a lower price, and they undertake to purchase the equipment from you.
- No. I submit a high offer from Harel, he wins. I'll supply the Unixes and Harel the Xs. Even though I wrote half an email, IBM wouldn't let me buy X's at cheap prices.
- Later in the email you write him a quote, do you win?
- That's right. We concluded that he wins in the front.
- In other words, it works out. Two bids are submitted to ELTA, Triple C and Harel Technologies. Harel Technologies' offer is lower, so it is clear that he wins, you write it to him explicitly.
- That's right. "
(P/237, S. 700-711, underline added).