Note on the proposal made by Triple C based on EMC
- We have seen above that on October 25, 2009, a few days after the coordination correspondence, Naveh submitted to Elta a proposal on behalf of Triple C, which was based on storage systems manufactured by EMC and not by NetApp (P/4, P/154). The price of the offer was lower than the price stated in the coordination correspondence with Shahar and cheaper than the price of Wee. Naveh testified that he may have informed Shachar of the proposal he had submitted (see paragraph 135 above).
- The defendants did not argue in their summaries in a concrete way as to the merits of this proposal. This may be the case, because it can stand up to the main argument that Triple C had no possibility of posing a competitive threat in Balam Indra. For the sake of completeness of the discussion, we will briefly address this proposal.
- As stated above, an arrangement was made between the parties - Wee, Harel and Triple C - for the submission of coordinated bids to Balam Indra, so that Harel and Triple C would submit bids higher than Wee's offer. On October 20, 2009 and October 21, 2009, email correspondence was made in which Shahar detailed the prices that Harel and Triple C must submit in their bids to Elta (paragraphs 129-132 above). Naveh even sent Shahar and Gilad the price table after slightly correcting the amount of Triple C's offer, so that it would still be more expensive than Wie's offer (P/14, at paragraph 133 above). This conduct - the correspondence that Shachar sent and the response to them - clearly attests to understanding and agreement.
- The aforesaid is sufficient to establish the conclusion regarding an understanding and arrangement for the coordination of proposals made between the parties.
- Indeed, after the coordination arrangement was formulated, Naveh submitted the proposal under discussion. This offer is ostensibly incompatible with the arrangement, whether in the fact that its price is cheaper than the price that corresponds to Wie's offer, or because it was based on a different storage system. However, this does not change the conclusion that a coordination arrangement was made between the parties, as was clearly proven from the correspondence from real time. As detailed above in the normative part, the execution of the arrangement or its actual implementation are not among the elements of the offense. Even if we assume that Naveh sought to deceive his friends into the arrangement and submit a competitive bid in an attempt to win, this will not change that. Alongside a restrictive arrangement, there is often an incentive to "cheat the cartel" and submit an offer that does not match the arrangement in order to win. This is a well-known and well-known phenomenon in the world of restrictive arrangements (e.g., criminal appeal 7068/06 State of Israel v. Ariel Electrical Engineering and Traffic Lights in a tax appeal at paragraph 21 (31 May 2007); The Angel case at paragraph 544). This does not detract from the conclusion that it has been proven that a restrictive arrangement had previously been formulated between the parties.
- Later on, and apparently after Mordechai asked Naveh for a NetApp-based offer, Naveh submitted an updated offer on behalf of Triple C, at a price higher than the price of Wee's offer and in a manner consistent with the arrangement that was made between the parties in the first place. Naveh even forwarded his updated proposal to Shachar and Shahar forwarded it to Oshri (paragraph 138) 138above). Such conduct also clearly supports the fact that an agreement and arrangement were formed between the parties, and thus the incriminating conclusion.
The Claim of Competitive Conduct on the part of Wei and Oshri in Balam Indra
- We noted above that Oshri was a direct (albeit covert) party to the coordination correspondence, that he acted with knowledge of the arrangement, that he had received from Gilad and Naveh, through Shahar, and during the proceedings of the BLM, he had made the proposals submitted by Harel and Triple C to Elta in accordance with the arrangement, while he was working with ELTA and to promote Wei's win, and that all of these are sufficient to make him a party to the arrangement. We also found that his explanations of the manner in which he understood the correspondence to which he was a party in real time should be rejected (paragraphs 148-157 above).
- Wei and Oshri claimed in their summaries regarding the "chronology" of the project, from which it emerges, according to the claim, that Oshri acted competitively throughout Balam Indra, while urging Shachar in order to ensure Wee's win in Balam; that he focused on competition with other manufacturers and not on competition from suppliers - Harel and Triple C - from whom he was not afraid because they could not compete with Balam Indra; that Oshrei's conduct supports the claim that no coordination arrangement was made; And that Oshri could not understand in real time that Shahar was coordinating the winning of the project with Gilad and Naveh.
- We have referred to the main claims, including the claim that Harel and Triple C had no possibility of competing with Balam Indra above. We will now turn to additional arguments that were raised regarding competitive conduct on the part of Oshri and what he was asked to learn from this, in particular with regard to his understanding of the state of affairs.
- As stated above, on September 23, 2009, Mordechai submitted a request for price quotes to Lt. Indra (P/227, P/288). Regarding this request, Oshri noted in his correspondence with Shahar that it "looks good", gave Shahar instructions to conduct inquiries, including in relation to prices with various manufacturers, and urged Shahar when he wrote to him, "We will take the deal" (P/230). Later, she received a special SB from IBM and a price quote from Mantap (N/229, N/116, N/232, N/412). Oshri testified that in view of the technological characteristics of the project, which was required by Elta, he thought that Levi had added value and an advantage and that it would be a miss if Wei did not win it, but testified 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). It was claimed that this was conduct that was the opposite of coordinating proposals. However, this argument ignores the fact that the coordination correspondence came only afterwards. Moreover, this testimony of Oshri contradicts another claim according to which, in the first place, it was clear that the win was guaranteed to Lewis and that the BLOM was only fictitious pricing.
Some time later - on 20 October 2009 - shortly after Value submitted her proposal to Elta (P/233) the coordination correspondence was made to which Oshri was a (hidden) party (P/289, P/564). Within a short time, Gilad forwarded to Shahar the offer submitted by Harel to Elta, whose price was higher than the price of Wee's offer in a manner consistent with the arrangement, and Shahar forwarded the correspondence and the offer to Oshri (P/291). In other words, Oshri knew that Harel acted in accordance with the arrangement and also knew the price of her offer.