Naveh's attachment to the correspondence for the coordination of the proposals in Balam Indra, at the request of Gilad (P/377), a combination that is also understood by Shachar in real time as a natural course of things (P/17), also testifies that the aforementioned agreement that is "later" to which the coordination with respect to Balam Indra is a previous agreement between the three companies, as was done in the arrangement in the first charge. When Shahar was asked in his testimony why Naveh should be a writer, he replied: "Because in some of the projects it was agreed that Yaakov [Triple C] would win, so he [Gilad] apparently wants to show him that we are okay, that we are not stepping on each other" (p. 2678, paras. 16-18; These clear statements should be preferred to the general statement at p. 2675, para. 16 - p. 2676, para. 7). These words that Shachar said in clear contradiction to the interest have weight. They testify that the coordination in Balam Indra, to which Naveh is attached, was made in continuation of a general arrangement that applies to a number of projects, which is the arrangement that is the subject of the first indictment (and I am not required to refer to the plea bargain that was made with Shachar, in which he admitted that the arrangement in Balam Indra was made in accordance with the agreement of the first indictment, which was filed on 3 June 2021).
Later, following Gilad's request, all the participants in the first indictment meeting became partners in correspondence to coordinate the price proposals to Balam Indra (P/17).
The course of action - submitting high bids in coordination in order to enable one of the companies to win - is also consistent with the content of the arrangement in the first charge. Accordingly, Shahar also sent, at Gilad's request, the prices that Naveh must submit in the Triple C price quote (P/13 following P/295, P/162).
Indeed, Table A/1 mentioned in the first charge relates to projects for execution in the second and third quarters of 2009, whereas the procurement order at Balam Indra was apparently made only at the end of 2009 (P/108, N/243). In Table A/1, the project, which was called Spain, was also "associated" with Triple C and not with Levi (it is possible that prior to the meeting, it was actually Triple C to which Elta approached with a request for a price estimate in relation to the project, N/3). This is despite the fact that the parties eventually reached an agreement on the second indictment to submit bids higher than that of Wee, which will win the Indra Medal. However, the aforesaid does not change the conclusion that arises from the evidence according to which the arrangement that is the subject of the second charge came and was made in continuation of the arrangement in the first charge, even if with change and adjustment.
- In any event, it is clear that even if it was an independent arrangement for coordinating the proposals in Balam Indra and not a follow-up arrangement to the arrangement in the first charge, this would not detract from the incriminating conclusion.
Oshri's involvement as a party to the arrangement
- An examination of the evidence brought shows that it was proven, at the level of proof required in a criminal trial, that Oshri was a party to the settlement of the second indictment. Oshri was actively and significantly involved in the formulation of Wee's proposal for the project and its conduct vis-à-vis ELTA and Mordechai, he was aware of the arrangement from its inception and sided (even if hidden) and in real time to coordinate email correspondence, he was updated later on in the coordinated proposals submitted by Harel and Triple C, and was involved in all of Wee's activity vis-à-vis Elta and the proposals submitted by Wee with his knowledge of the supplier-competing proposals, and in a manner that indicates his agreement to the arrangement and his being a party to it. We will detail the main points. Later we will discuss additional defense arguments raised in this regard.
- Oshri was very involved in the Indra project and all along the way. In response to Mordechai's request of September 23, 2009 to receive price quotes from the various suppliers (P/227, P/288), Oshri gave Shahar precise instructions to conduct inquiries, including in relation to prices with various manufacturers, and urged Shachar when he wrote to him, "We will take the deal" (P/230). Oshri testified that in view of the technological characteristics of the project, which was required by Elta, he thought that Levy had an advantage and that it would be a miss if Wei did not win it, but confirmed that "this of course does not mean that it is our project" and "it is not in my pocket" and that it would therefore incentivize Shachar to act (p. 4458, s. 16 - p. 4460, s. 6). Oshri was involved even after Mordechai updated the request for a quote (P/155, a copy of which was sent to Oshri in P/288) and Oshri himself testified that he was involved both before and after the request for quotations, including in working with manufacturers (P/4460, para. 20; see also his words in P/216, paras. 317-318 that he was the one who did the work with the customer, and his testimony that he was in direct contact with Mordechai, For example, p. 4865, paras. 16-17). The claim that there was no competition, that Elta had no option but to choose Wii, that the competition was only against other manufacturers and not against Harel and Triple C, which were other IBM suppliers, is inconsistent with the evidence and in any case does not matter. We will address this separately. At this stage, however, it should be noted that Shahar testified, after a number of answers that had a prominent dimension of evasion and convolution, that at the end of the day there was also competition between the suppliers - V, Harel and Triple C (p. 3158, s. 22 - p. 3159, s. 16). In any event, what is important for our purposes now is that Oshri was actively and dominantly involved in everything related to Wee's candidacy in the Indra project.
- On October 20, 2009, Wei submitted her proposal to Lt. Indra (N/233). Oshri was involved in this in real time (see N/233 in which Shachar sent the Wii offer to Mordechai with a copy at the same time to Oshri as well).
- And now, a few minutes later, at the same time as Wee's proposal was submitted to Elta, the coordination process began. Shahar sent Zeiger and Gilad Maharel the prices of Harel to Indra and explicitly stated that it was "further to the agreement" between the parties (P/289). Oshri was a party to the correspondence, about which he writes in a hidden copy (P/564). Oshri was in fact a covert partner in the correspondence and arrangement. In the days that followed, Oshri was involved and dominant in everything related to Intre. He gave instructions to Shahar. He informed Shachar that he was working on the matter with NetApp (P/236, P/293). He was required to attend to technical matters (P/237), following which Wye submitted an updated proposal (P/158) and he asked to promote a meeting with Mordechai (P/109, P/237). In between, while Wei was operating in Balam Indra and in front of Elta, Oshri received in real time the price quotes submitted by Harel and Triple C to Elta, as they were forwarded to Shahar by Gilad and Naveh, and whose prices were higher than Wei's price quote, in accordance with the arrangement (P/291, P/16, P/294). Later, Oshri met with Mordechai (P/117, P/240), after which Wei submitted additional offers to Elta (P/160, P/161), all while Oshri knew the details of the price quotes of Harel and Triple C that were submitted according to the arrangement between the parties, and he could direct Wee's actions accordingly.
- The picture that emerges is clear: At the same time as submitting her proposal, Wei worked to coordinate with Harel, and immediately afterwards with Triple C. Oshri was a direct party to the coordination correspondence, even if it was a covert party. This is a direct, real-time involvement that in the circumstances of the case can attest to consent. Later, Oshri accepted the offers of Harel and Triple C as they were submitted to Elta, so that he knew that their prices were submitted in accordance with the arrangement, all while he acted and continued to work to promote the interests of Wei vis-à-vis Elta, and to submit additional offers from Wee.
- The evidence therefore shows that Oshri was not only aware of the arrangement, but also that he was a direct party to it, because he was a partner in it, because he acted with knowledge of it and in accordance with it, and in any case he agreed to it. In this situation, there is a clear basis for convicting Oshri as a party to the arrangement (see and compare: the Ben Dror (District) case at paragraphs 660-664; the Borowitz case at paragraph 76).
- Support for the aforementioned conclusion also arises from Shachar's words. In his interrogation at the Competition Authority, Shahar said that Oshri was involved in the agreement regarding Balam Indra (P/557(8), paras. 135-139), that it was clear that Oshri knew about the agreement with Harel and Triple C according to which Wei would win the project, and explained that Oshri wanted to be informed and manage the process so that he could decide what to do (P/557(8), 356-362). In his testimony, Shachar did not retract his statement, although he tried to limit their meaning. At first, Shachar stated that Oshri was involved in the summary because Shahar used to update Oshri on everything and that Oshri was involved in the fact that he was updated in the summary (p. 2676, paras. 10-13, 22-23, p. 2682, s. 21 - p. 2683, s. 3), immediately afterwards he suddenly claimed that he thought Oshri did not know about the summary (p. 2683, paras. 7-8) and later said that he did not know if Oshri knew (p. 2683, Q. 10-12) and later reiterated that he had updated Oshri (p. 2688, paras. 17-19; ibid., in relation to the Triple C proposal for Elta). In view of the impression that arose from Shahar's testimony, in which he tried to minimize Oshri's part as much as possible, preference should be given to his earlier statements regarding Oshri's involvement and knowledge, which are also clearly supported by the real-time coordination correspondence to which Oshri was a party (even if hidden), from the correspondence that came afterwards, in which Oshri's suggestions were forwarded to Oshri during the proceedings of the CBD, And the picture of Oshri's deep involvement in the Balam Indra in its entirety and throughout the entire process.
- Wei and Oshri raised, among other things, claims that Balam Indra was nothing more than a "show" by ELTA to receive fictitious offers, since it was clear from the outset that it would be the value that would supply the equipment. In this context, claims were also raised regarding the technological configuration of the project, the involvement of the manufacturers, and more. These are addressed separately below.
- Let us now address Oshri in relation to the e-mail correspondence to which he was a party and his attempts to explain them. Oshri did not deny the email correspondence. He did not claim that he did not receive them or that he did not read them (para. 191 of the summaries of Wei and Oshri; Oshri testified that when he received the e-mails, he focused on the suggestions that were attached to them, opened the Excel files that were attached and reviewed the suggestions there, for example, p. 4863, paras. 23-25, p. 4488, paras. 1-8). In his testimony, Oshri claimed that he believed that the correspondence and the offers attached to them revolved around procurement between suppliers, i.e., offers that Harel and Triple C would purchase equipment for the purpose of participating in thefictitious Indra and Oshri Hyala 1 and onwards
- According to him, it was a matter of price quotes and their purchase prices from Wee, and not about the coordination of the price quotes that each company would submit to Elta (for example, p. 4491, s. 7; 4858, s. 17 - p. 4859, s. 19, where he claimed in relation to P/289 that he could not understand the matter except as a quote from W. for the prices at which Harel would purchase the equipment from it).
Oshri's version should not be accepted. His testimony on this matter was unreliable and is inconsistent with the documents and correspondence from real time: