The remaining defendants in this indictment, Zeiger and the companies: Wey and Harel, are charged with an offense of being a party to a restrictive arrangement under section 47(a)(1) of the law as drafted at the relevant time, together with sections 2(a), 2(b)(1), 2(b)(3), 4 and 55a(b) of the Competition Law, as well as the offense of fraudulent receipt under aggravated circumstances, under section 415 of the Penal Law. Zeiger and Harel are also accused of attempting a restrictive arrangement under section 47(a)(1) of the Law as drafted at the relevant time, together with sections 2(a), 2(b)(1), 2(b)(3), 4 and 55a(b) of the Competition Law and section 25 of the Penal Law (see: section 157, section 162(b) of the amended indictment; although in the section relating to the provisions of the statute Zeiger is not mentioned in relation to the offense of attempt; it appears that this is an omission; and Masharel and Zeiger did not refer to this in their summaries, They seem to have thought so, too). In relation to Levy and Harel, the indictment also refers to section 23(a)(2) of the Penal Law. In the indictment, Oshri was attributed the responsibility of officers by virtue of Section 48 of the Competition Law.
Discussion
Overview
- The eighteenth indictment revolves around a request for the purchase of X servers for ELTA's MPR project , which is MPR(X). This comes after the combined MPR unit – on which the seventeenth indictment revolves – was split.
- In the BMC, MPR(X) asked Maman to purchase X servers for Elta. The contents of the procurement included both "Nun Blade" servers, which are included in the Comptroller General's agreement, and "Blade" servers that are not included in the Comptroller General's agreement (Zeiger, p. 5367, paras. 6-10; Peretz, p. 1612, s. 19 – p. 1613, s. 15; see also the description in paragraph 956 above).
The share of the "non-blade" servers, in which Harel could have a comparative advantage due to the Comptroller General's agreement, was relatively small, amounting to less than 10% of the total cost of the content (Shkanevsky, p. 978, paras. 4-8; see, for example, also P/112, Harel's proposal of March 14, 2012, the first component of which was that it came under the Comptroller General's agreement (and only it was offered at that time under the Comptroller General's discount) and that its share of the total contents was small). As we shall see below, this matter is sufficient to give a great deal of light to Harel's arguments.
- With regard to the facts relating to the indictment in question, they testified, inter alia: Zeiger and Shahar. They also testified that Shekanevsky, a procurement buyer at Maman, was the one who issued the MPR(X) on behalf of Maman, he was the one to whom the bids were submitted and he was the one who accompanied the procurement process. In their summaries, the parties also referred to the testimonies of other IAI officials, including the testimony of Peretz, as well as the testimony of Orshitzer of IBM.
MPR(X) and the Privileged Coordination
- At the beginning of March 2012, Shekanevsky approached a number of suppliers requesting quotes for the purchase of X servers for ELTA's MPR project.
(See: P/111 - Sheknevsky's letter to Chasia, VP of Sales at Triple C, dated March 7, 2012, together with an Excel table detailing the required server contents (the request was preceded by a request by Chassia to receive the VM when a demand for the project arrived after rumors reached her that such a demand was expected to arrive, and correspondence in this regard between Chassia and Shaknevsky); P/270, P/403 - Sheknevsky's letter to Shahar Movi dated March 7, 2012, together with the table of the said contents; P/112 - Sheknevsky's letter to Gilad Maharel dated March 14, 2012 (in relation to an updated proposal, after Harel had previously submitted a proposal to the project's personnel (N/79) even before the split of the combined combat vehicle); In the summary of the procurement process conducted by Shekanevsky on March 28, 2012 (P/114), he noted that four suppliers had been contacted, including A.M.T.; Such a request was not submitted as evidence and apparently was not located, such as Shkanevsky, p. 976, paras. 18-22 (there was an unanswered request), p. 978, paras. 19-20); See also P/106 – Appointment of Shkanevsky on March 14, 2012 as a negotiator and for conducting competition between suppliers (which relates to both P and X servers), Shkanevsky, p. 966, s. 21 – p. 967, s. 15, even though some of the events that are the subject of the indictment took place even earlier).