Moreover, it also makes no sense for Nahum to raise with Zeiger the need to conceal from Elta the fact that it is worthwhile for her to split the acquisition as claimed. After all, Zeiger's position, according to his own opinion, is the opposite, and according to Zeiger, splitting the acquisition will benefit Harel and will be able to leave it with a larger part of the profit (the entire consideration for the sale of X servers).
Triple C and Nahum further argued that the purchase of Unix servers by Harel from Triple C for the purpose of selling to Elta requires arrangement and approval with IBM and Elta (see paragraph 987 below), and therefore the expression "Elta must not know" is not intended to conceal the arrangement, since it cannot be executed without the knowledge of Elta and IBM. This argument should also not be accepted. The assumption underlying the claim that cooperation between Harel and Triple C was a necessity of reality is not without doubts, as we shall see below. Beyond that – and this is the main thing – there is no difference between cooperation in Harel's procurement from Triple C, which may have required an arrangement with IBM and Elta, and the coordination of price proposals, which is criminal and improper and which the parties sought to conceal, even a little bit (and Nahum's separate reference later in the email to the coordination of "also" with IBM also supports this; See also Zeiger's testimony, p. 5354, s. 20 - p. 5355, s. 7).
- In view of the aforesaid rule, the arguments raised by the defense regarding the content of the arrangement should be rejected – the arrangement clearly revolved around the coordination of price quotes, and in relation to this coordination, the parties determined that Elta must not know (and above all it should be noted that Shkanevsky testified that he did not know about the coordination correspondence (P/123) between Zeiger and Nahum, p. 1101, s. 7 - p. 1102, s. 4, and his testimony was not contradicted).
The claims that cooperation between Harel and Triple C would have been necessary due to the combined procurement requirement and that it would have been optimal for ELTA
- Zeiger and Harel argued that ELTA's demand for a combined purchase of X servers and Unix servers was a "bad idea" (paragraph 741 of Harel's summaries); that the demand created an "insoluble problem", and that in order for Harel to be able to supply the required equipment, it had to cooperate with a supplier authorized to sell Unix servers (in our case, Triple C), with the knowledge and approval of IBM and Elta (paras. 738-739 of Harel's summaries). Zeiger testified that Harel can purchase Unix servers only from an authorized IBM supplier and with IBM's approval (p. 5342, paras. 17-24, p. 5344, paras. 19-24 IBM approval is required for such a transaction and perhaps also approval of the project; p. 6035, paras. 14-22, approval of IBM and ELTA is required; Harel and Zeiger also refer to the words of Nahum, P/237, paras. 814-815, according to which IBM was required to be informed of the purchase of the Unix servers also from the perspective of the export laws of the State of Israel). The defense referred, inter alia, to the testimony of Orshitzer, who remembered any talk about the purchase of P equipment for the MPR project "How will someone buy", in the context of Harel's restriction on the purchase of P servers, which one partner can and the other cannot and that needs to be resolved (p. 2447, paras. 19-25, p. 2475, paras. 3-11). In doing so, they tried to explain the email correspondence between Zeiger and Nahum and justify it.
- These arguments cannot be changed. They do not legitimize or justify an arrangement for coordinating price quotes.
- First, we saw above that at the end of the day, after the split of the integrated MPR, it was Wii that won the supply of the Unix servers to the MPR project; that the explanation for this may be that the project required non-new Unix servers that did not require manufacturer approval or certifications for sale; and that this would largely undermine the defense's claims that only Triple C and EMT could have supplied the Unix servers in response to the MPR or because of this cooperation between Harel and Triple C is required (see further in paragraph 960 above). To this, it should be added that in his first letter to Zeiger, Nahum wrote that "in the MPR project , we can go together. It is possible to go separately" (P/123, underline added), which also raises a question mark as to whether the cooperation in mutual procurement or in the submission of a joint proposal was necessary (although this is not the case).
- Second, and it is the main one, even if we assume that due to the demand for integrated procurement, Harel had no choice but to purchase Unix servers from another supplier – although, as stated above, this is not free of doubt – and even if approvals were required to do so, this would at most explain the acquisition by Triple C and the submission of a bid by Harel (for which the indictment is not charged). This does not indicate, even remotely, that the parties were entitled to agree on the submission of two price quotes in coordination and that Triple C would submit a higher price quote than Harel's, so that Harel would be the winner of the combined procurement (see Ben Dror (District) case at paragraphs 525-526, 536 and 647).
- Nahum and Triple C further argued in their summaries that the cooperation between Triple C and Harel was optimal for ELTA and was capable of guaranteeing Elta the cheapest price in relation to any other alternative, while the sale price to ELTA was actually set by IBM (e.g., paragraphs 134-141, 187-189, 226 of the summaries). It is possible that they wished to learn from this that there was no libels in the arrangement attributed to harming competition. This argument should not be accepted and does not justify an arrangement for coordinating proposals or legitimizing it. We will discuss the main points.
Nahum and Triple C's argument was based on a number of layers: