We noted above that the claim that cooperation between Harel and Triple C was necessary is not without doubts. Beyond that, and this is important for our purposes, in its arguments, the defense diverts the emphasis from the main point, which is the arrangement that was made between Zeiger and Nahum to coordinate the price quotes that will be submitted to Elta, according to which Triple C will submit to Elta an offer that is higher than Harel's offer so that Harel will win. Such an arrangement constitutes a clear "limitation" and "restriction" in relation to the price offered by Triple C. It falls within the category of absolute attachments. The arrangement for coordinating quotations is a "naked chain" that has no justification other than harming competition (and it is not for nothing that the defense did not point to a legitimate reason or any justification for agreeing to submit coordinated price quotes).
The allegations of such a tie-up's infringement on competition are clear and unequivocal (see also the Wall case, in paragraphs P.A. and Triple C, to which Nahum and Triple C referred, where it was explicitly stated that "a case of coordinating bid prices in tenders... Their harm to competition is self-evident" and in any case they come within the framework of absolute presumptions). With regard to the libels of harming competition, see also what is stated in paragraph 993 above. The claims that a demand for combined procurement created a problematic reality and that there was no feasibility of competition cannot justify an arrangement for coordinating proposals. These arguments are capable of undermining the absolute presumptions and emptying them of their content (see and compare: the Ariel case at paragraph 20). In any event, insofar as there was no feasibility of competition, it was not clarified why the parties bothered to agree on the coordination of the proposals they would submit.
- Nahum's argument that he did not have the required mental element should also be rejected. This argument was based on the argument that the required factual basis had not been proven (paragraph 268 of the summaries). Once it was determined that this was proven, the basis for the claim was dropped. Nahum and Zeiger reached an arrangement according to which coordinated price quotes would be submitted. This is clear from the correspondence from a very long time ago, and we saw above that Nahum even confirmed the matter in his interrogation, and that his arguments should not be accepted in an attempt to evade their clear meaning (see paragraph 984 above). In any case, there is a mental element of awareness of the physical nature of the actions and the circumstances. In their summaries, Triple C and Nahum referred to what Nahum wrote to Triple C's staff - shortly after the correspondence with Zeiger - that "an agreement was reached with Harel. Half and half. Our half also has Unixes. It was also agreed with Urshitzer. He checks that the process will be legal... " (P/187, P/500, underline added). Orshitzer testified that the examination against him concerned the receipt of a special hand (p. 2475, paras. 25-33), and not to other aspects. It was not claimed or laid any infrastructure for IBM to know about the arrangement for coordinating price quotes. Since Nahum did not testify at the trial, this reflects on the weight that can be given to the things he said in his interrogation, as if Orshitzer was also supposed to examine the legality of the matter from the perspective of competition law (P/237, paras. 806-824). In any event, Nahum himself did not claim that he believed that the arrangement for coordinating bids was legal (see also P/237, paras. 690-695). There is no basis for such a claim. It also does not establish a defense (Section 34Y of the Penal Law). Either way, it does not change the conclusion regarding the existence of the mental element.
- Finally, the indictment revolved around an arrangement made between Zeiger and Nahum to coordinate the price proposals that would be submitted to ELTA. The defense's arguments seek to shift the spotlight toward the servers demanded by ELTA – servers X and servers P – and what it claims derives from this, in an attempt to paint the parties' conduct in legitimate colors. We have seen that all the arguments that seek to downplay the main point should be rejected: the coordination arrangement. In any event, Nahum and Triple C's arguments that the indictment presents the combined MPR "through the keyhole" while ignoring the "true story" and omitting "acquittal facts" (paragraphs 146-151 of Triple C's summaries). The judgment in criminal appeal 6392/07 State of Israel v. Yehezkel (30 April 2008) is also of no use to the defense. This is because it revolves around completely different circumstances with respect to the exclusion in the indictment of facts that were an integral part of the set of events.
- Therefore, all of the defense's arguments should be rejected.
The Seventeenth Charge: The Result
- The result of the aforesaid is that it has been proven, beyond a reasonable doubt, that the coordination and restrictive arrangement that is the subject of the seventeenth indictment – the combined MPR – to which Zeiger, Harel, Nahum and Triple C were parties. Therefore, I convict Zeiger, Harel, Nahum, and Triple C of the offense of being a party to a restrictive arrangement under section 47(a)(1) of the Competition Law, as drafted on the eve of the commencement of Amendment No. 21, together with sections 2(a), 2(b)(1), 2(b)(3), 4 and 55A of the Competition Law. The conviction of Harel and Triple C is also based on section 23(a)(2) of the Penal Law.
The Eighteenth Charge
The Eighteenth Charge: X-Servers for the MPR Project - Balam from March 2012
- The eighteenth indictment was directed at Shahar, Wei, Zeiger, Gilad and Harel. According to the indictment, during the month of March 2012, Maman Levi, Harel and Triple C approached Triple C in order to receive quotes for the purchase of X servers for the MPR project (MPR(X)). The aforementioned defendants were attributed to the fact that at a time close to the departure of the BMC, they were a party to an arrangement whereby Wei would submit a higher bid than Harel's in order to enable Harel to win the MPR(X) BML. It was also attributed that on March 14, 2012, Zeiger, Gilad and Harel tried to be a party to an arrangement whereby Triple C would submit a higher bid than Harel's in order to allow Harel to win the MPR(X) ball. According to the allegations, Wei and Harel submitted their proposals in accordance with the arrangement. Triple C did not submit a bid in the MPR(X). Harel won and was selected to perform the MPR(X) UAV in the amount of approximately $340,000. The aforementioned defendants were also accused of making a false representation to Maman according to which their proposals were submitted independently, without consultation, coordination or contact with another bidder, and in any event they did not disclose the fact of coordination between them (the misrepresentation) and that based on the misrepresentation, Maman's opinion regarding the validity of the bids of Wei and Harel was accepted and Harel's bid was accepted as the winner. Oshri was credited with not being supervised and did everything possible to prevent an offense under the Competition Law.
Shahar and Gilad's case ended, as stated above, in plea bargains. Shachar was convicted of the offense of a party to a restrictive arrangement in relation to the MPR(X) police station (without being charged with the offense of fraudulent receipt). Gilad was convicted of the offense of being a party to a restrictive arrangement (without attributing the offense of attempt) and of receiving something fraudulently (without aggravating circumstances attributed to him). As noted above, the aforesaid does not negate the possibility of convicting Wei and Harel of the offenses attributed to them, to the extent that guilt is proven at the required level (see the discussion at paragraphs 201-214 above).