On the date when the coordination correspondence began - 20.10.09 (P/289) - the storage configuration (NetApp or EMC) had not yet been definitively determined, and only marketing efforts clearly recognized the incriminating conclusion. NetApp, Naveh submitted an updated offer on behalf of Triple C, at a price higher than the price of Wi-O's offer, at least not before giving final notice to the suppliers who were asked to give price quotes. Oshri testified that at later times, for example on October 26, 2009, he worked with NetApp in an attempt to convince ELTA that NetApp's solution was preferable to EMC's, which implies that from Wei's point of view, the possibility of EMC's solution being chosen had not yet been taken off the agenda at that time (N/235, N/236, p. 4464, Q. 21 - P. 4468, S. 6, and this reflects on the weight and implications of Mordechai's responsa from which the defense sought to be built, as if even before and already on 29 September 2009 Elta had closed on the fact that the storage systems would be NetApp's, p. 1248, s. 1-10, p. 1246, paras. 14-16, from which it emerges that the final configuration was in fact formulated later; At least because Wei didn't know about it). In addition, contrary to what was claimed, the evidence showed that both Harel and Triple C - and not just Levi - had the opportunity to offer Elta and provide it with NetApp storage systems, if only by way of purchasing the systems from one of NetApp's authorized business partners - and there were a number of such partners - while supplying and servicing Elta through him (as Oshri himself testified, p. 4481, s. 10 - p. 4484, s. 12; testimony of Zeiger, p. 5527, paras. 10-12; Testimony of Naveh, p. 104, paras. 13-16, p. 172, paras. 18-27). In fact, Harel also received a direct price quote from NetApp in order to submit her bid to Balam Indra in a manner that supports the fact that she could have provided NetApp herself (N/417, testimony of Ronen Noy (Noy) Mantap, p. 6221, paras. 31-33). There is no real explanation for this proposal. The aforesaid rule undermines the argument that only Wei could have submitted a bid and supplied NetApp equipment (see also Mordechai's testimony that Triple C could have purchased another joint NetApp and raised the price it was offering to Elta accordingly or did no-hand, i.e., to refrain from submitting a bid, p. 1252, s. 21 - p. 1253, s. 8). Indeed, it is possible that Levi had previous experience and a professional advantage in all matters related to the storage systems made by NetApp Value was a business partner of it (for example, Edot Noy, p. 6169, paras. 26-32, where he referred to Wee's high technological level and the fact that some of its customers preferred to work with it). It is also possible that Harel and Triple C faced difficulties in this regard. However, the aforesaid does not lead to the conclusion that there was no feasibility of competition or that there was no competition concern. In any event, this does not justify or legitimize the submission of proposals in coordination.
- Claiming that the final price was set between the manufacturer and the customer - (he offers Elta another joint app and raise the price accordingly or to refrain from submitting an offer, customers preferred to work with itat Balam Indra asked Elta to purchase, among other things, computer equipment made by IBM and storage systems that were ultimately made by NetApp. Both IBM and NetApp operate through authorized suppliers to whom they sell the equipment, and it is these suppliers who sell the equipment to the end customer, in the indictment currently under consideration, Indra, Elta. According to the defense, in practice, it was the manufacturer and the customer who determined the sale price even in the link between the supplier and the customer, so that there was no possibility of price competition between the suppliers. Similarly, it was claimed that the manufacturer - mainly IBM in the mechanism called the Special Bid (SB), which will be discussed separately - gave a preferential price to one of the suppliers through which it wished to carry out the sale, so that it was the manufacturer that in fact determined who would win the execution of the project, and in a way that left no room for competition between the preferred supplier and other suppliers. We will deal with these general arguments separately below, and it seems that they should not be accepted (see the discussion in paragraphs 1071-1086 below).
At this stage, we will only note that no basis was laid for the fact that this was the case with Balam Indra, the subject of the second indictment. The evidence showed that Mordechai contacted both manufacturers and suppliers in the early stages, including NetApp in order to obtain a price estimate for the project's storage systems (e.g., N/224, N/410 (5 August 2009), N/114, N/228 (25 September 2009), N/115, N/231 (30 September 2009), the last price estimate was $42,000). However, Mordechai's testimony revealed that this was not the final price for ELTA, but rather a proposal for a technological configuration alongside an initial price estimate, in order to obtain an order of magnitude when budgeting the project, when the final price to the customer was determined by the supplier and at his discretion (p. 1239, paras. 7-11, p. 1241, paras. 5-7; and see also the ornamental testimony according to which the supplier-partner is the one who sells the systems to the customer and it is he who sets the price for the customer. p. 6112, which was not contradicted in all matters relating to Balam Indra). Subsequently - and even before the coordination correspondence - NetApp gave separate price offers to Levi and Harel, that is, it set the price at which each of them would be able to purchase from NetApp the storage systems that would be sold in turn by Balam Indra (bids dated October 14, 2009: a loan offer in the amount of $36,500 (N/116, N/232, N/412; an offer to Harel in the amount of $41,000 (N/417)). Although the offers on the part of NetApp reflected an accompanying advantage, they do not exclude the possibility of competition between the suppliers, as each of them is entitled to determine the price at which it will sell the equipment in its entirety, including the storage systems, to Elta/Indra, including at a different price, and even lower, than the initial price estimate given by NetApp to Elta (Noy Testimony, p. 6281, s. 32 - p. 6282, S. 6, where he specifically referred to Indra and testified that as far as NetApp was concerned, there was no limit on the price at which Wii or Harel could sell the storage systems; and the testimony of Noy at p. 6220, paras. 26-31 does not change this matter).