The first is that in order to provide a solution for the combined purchase of P and X servers, the cooperation between Harel and Triple C would have been necessary, since at that time only Triple C and EMT had permission for Unix servers (e.g., paragraph 179 of the summaries). However, we saw above that it was Wii – and not Triple C or EMET – that ultimately provided Elta with the Unix servers for the project in a way that largely undermines this layer;
The second is that in all that is said in Servers X, Harel's win was guaranteed in light of the Comptroller General's agreement (for example, paragraphs 168-173 of the summaries). This argument was rejected above and we have seen that the Comptroller General's agreement between the Civil Appeal and Harel does not guarantee Harel's win in advance, does not negate the existence of a pricing proceeding, and that Zeiger and Harel also knew this (see paragraphs 327-335 above, this is both there in general, and in particular when it comes to mixed content; when in our case the content of the combined procurement included both Unix servers and Blade servers that are not under the Comptroller General's agreement, and even more so when the share of the components that fall within the scope of the Comptroller Agreement was relatively small, see paragraph 1002 below). Nahum and Triple C referred to the fact that after the split of the procurement, Harel had retroactively won the purchase of X servers (the subject of the eighteenth indictment) when its offer was based on the Comptroller's discount (P/355, P/105; it appears that in fact an additional discount was given in addition to the Comptroller General's discount). However, this does not teach that Harel's victory was promised le-khatḥila (and this is even ignoring the argument that there, too, the win came after improper coordination, which is the subject of the eighteenth indictment).
Third, because Triple C had a clear advantage and had the highest chances of winning the supply of Unix servers (e.g., Section 187 of the summaries). In this context, it was argued that Triple C had previously supplied computing equipment for the MPR project and that the procurement demand was a continuation of previous procurement (para. 1 of P/114; see also N/443, N/444; Zeiger, p. 6033, paras. 17-19); that the only supplier other than Triple C that could supply Unix servers was A.M.T. (N/16), but at that time A.M.T. did not compete in any real way for IBM products in a civil appeal (Peretz, p. 1733, paras. 1-3; The defense also referred to the discrepancy between EMET's proposal and Triple C's offer in the online bidding held for the purchase of Unix servers after the splitting of the integrated UAV, P/122); that in these circumstances, Triple C will receive a special from IBM, which gives it a deep discount from IBM that will guarantee its winning, along with a limit on the maximum selling price to the customer-Elta (paragraphs 131, 188-189 of the summaries); So the combination of Triple C and Harel, with the preferred terms of each, will maximize the discount for ELTA. The arguments in this layer also raise difficulty. It is enough that Value ultimately won the supply of Unix servers to Elta at a cheaper price than Triple C - despite Triple C's claims of clear priority and advantage and that value is not at all relevant with regard to Unix servers - in order to undermine the claim and at least establish uncertainty as to possible competition (to which it should be added that in his correspondence with Zeiger Nahum himself referred to possible competition from Wii and EMAT, P/123 Notice of 16:07; Zeiger, p. 5347, paras. 4-15). Triple C did not even present a special in hand that it actually received from IBM in relation to the sale of the Unix servers to the project after the split of the purchase demand, and in any case did not present the discount rate it received from IBM (to the general argument that granting a special to a certain supplier negates the possibility of competition, or fixes the price to the end customer, and to the arguments based on the decision of the Competition Commissioner to grant IBM an exemption from approving a restrictive arrangement also in relation to the special by-hand procedure (N/207), We will discuss separately below, see paragraph 1071 onwards below; We will only note that the exemption decision does not relate to coordination between the suppliers and cannot justify such coordination).
- Therefore, the arguments of Nahum and Triple C that the cooperation between Triple C and Harel would have been necessary and that it was necessarily the best for ELTA should be rejected. Moreover, even if there was a substantive reason for cooperation between Harel and Triple C in the purchase of Unix servers by Harel, as already noted above, this does not justify or legitimize an arrangement for the submission of coordinated bids to ELTA, in which two separate bids will be submitted, Triple C will submit a higher bid than Harel's in coordination with it, so that Harel will win (the cooperation made in 2006 in the IRIS project, that the inclusion of the purchase of equipment from Harel by Triple C with the involvement of IBM, N/390, cannot be changed for our purposes since it did not include price coordination, which is the subject of the indictment here; In addition to the fact that the full details were not brought in relation to the said project, Zeiger testified that he was not the one who managed the project and it is clear that he did not remember the conduct, p. 5509, paras. 6-15).
- The bottom line: Harel and Triple C were parties to an arrangement that included an agreement to submit coordinated price quotes. Such an arrangement falls within the scope of the absolute presumptions in the law, i.e., it is an arrangement that by its nature establishes libels to harm competition. Moreover, when the arrangement was made between Zeiger and Nahum, the two did not know that the purchase demand would be split. To the extent that the combined MPR was implemented, the arrangement for coordinating the proposals could have harmed competition. Either because Triple C was prevented from submitting its own independent-competitive bid on the basis of its advantage claimed in the Unix servers, or because the submission of a coordinated bid was behind Elta's back – "Elta must not know" – and therefore it would have denied Elta and Maman from making a decision based on a true competitive picture.
Reference to Additional Defense Arguments - Supplementary Notes
- In view of the above, the arguments of Nahum and Triple C should also be rejected as if the facts that were proven do not reveal an offense and do not formulate the foundations of the offense of the restrictive arrangement (paras. 253-287 of the summaries).
- Nahum and Triple C place the main emphasis in this context on the "problematic reality" created by the project's demand for combined procurement, due to which there was no choice but to cooperate between Harel and Triple C, and therefore – this is the argument – the element of "limitation" does not exist (paras. 258-262 ibid.), and that in the absence of the feasibility of competition, there are no libels to harm it (paras. 263-267, and see also paras. 277 therein). It was also argued that in the circumstances of the case there is no justification for applying the absolute presumptions.
These arguments should not be accepted.