Additional claims that there was no feasibility of competition in Balam Indra and that it was intended to be an accompaniment
- The defense, especially Wei and Oshri, insisted on additional reasons for which - this is the claim - there was no feasibility of competition between the suppliers at Balam Indra, and that ELTA knew in real time that there was no other option other than Wii for the execution of the project, which was also the preferred supplier on the part of IBM and NetApp. In this context, arguments were raised regarding the requirement for international warranty, which was allegedly but accompanying, that only Wii could have sold NetApp storage systems as required by ELTA at the time, etc. It was argued that against this background it is clear that ELTA's request for price quotes was not a competition, but rather a misrepresentation of its internal needs to "arrange the file", and that against this background Oshri's version should be accepted because he did not understand and could not understand that it was a matter of coordination.
- These arguments should not be accepted and do not qualify the coordination correspondence. We will address the claims briefly.
- International Liability (ISI) - According to the claim, when it comes to equipment and systems that must be removed from Israel, as in the project in question intended for Spain, international liability is required - the ISI contract. It was argued that only Levi had such a contract, because Harel and Triple C did not have such an option, and therefore the latter had no possibility of competing with Wei in the first place (e.g., paras. 153-154, 200-201 of Wee summaries; and see Oshri's testimony in which he explained that this is a value contract and that other suppliers also receive and that allows, for example, to undertake to supply the same products to the customer even after their life cycle with the manufacturer ends. 4396, s. 1 - p. 4397, s. 17). However, contrary to what was claimed, Oshri himself testified that "it is not that without ISI there is no option at all," while explaining that a supplier can compete even without an ISI contract, for example by purchasing a service contract in the destination country (p. 4833, s. 25-p. 4834, s. 7; See also the Blu-ray project in which Harel saw herself as the one who was supposed to win, and in relation to it, Oshri testified that Harel competed with Wei and fought against it, not long before the coordination discussed here, even though according to him she did not have an ISI contract, pp. 4833-4834; and see also p. 4401, paras. 1-25, where Oshri explained how it is possible to manage even without that responsibility, even if it is less convenient. With an example of a case in which Wei acted in this way; When Mordechai was asked about this, he did not know what ISI was, p. 1173, paras. 21-24, in a way that reflects on Wie's arguments and the weight of this demand, and even from what he said earlier in his testimony regarding the preference for the provision of comprehensive service by one supplier, there is nothing in them that the defense finds). In any event, even if we assume that this is a figure that created difficulty for others or gave the borrower an advantage, even significant, it can justify not submitting a bid by a competitor or submitting a bid that will take into account its data, but this does not qualify the coordination of bids.
- NetApp storage systems - Balam Indra is also required to offer storage systems. For our purposes, storage systems manufactured by two different manufacturers: NetApp and EMC are relevant. At the beginning, Mordechai approached both NetApp and EMC to get quotes (see paragraph 123 above). In the request for quotations by the defendant companies, it was noted that it was possible to submit storage systems of both NetApp and EMC (N/227, and this was also noted in the table attached to the update of the Request for Quotations, P/288; it should be noted that NetApp systems can also be purchased from IBM, which is authorized to sell them under the name N-Series, for example, p. 1242, paras. 1-5). At the end of the day, it seems that it was decided to demand NetApp storage systems. Wee, Harel and Triple C submitted proposals that included netapp systems, and it was Wii that was chosen to supply the equipment. According to the claim, from the moment Elta chose to purchase IBM equipment, it was clear that the storage would be made by NetApp. It was further argued that Triple C could not have provided NetApp systems, but only EMC because it was not an authorized partner of NetApp (e.g., paragraph 189 of Wee Summaries, Oshri Testimony, p. 4481, paras. 10-12) and according to Wee, Harel could not market NetApp products because she was not a NetApp partner at the time (e.g., paras. 181 and 192 of Wee Summaries, N/396, Oshri testimony, p. 4474, paras. 11-18; Harel herself did not make this claim in connection with Balam Indra in her summaries, as opposed to her claim that she did not receive a priority from Mantap, for example, paragraph 271 of Harel's summaries). Hence - this is the argument - that only Wii could have provided what was required by Balam Indra, and also because of this, the request for quotes was fictitious and not a real competition.
These arguments are also unacceptable.