Wei and Oshri asked to build on a correspondence between Oshri and Shahar dated 30 October 2009, two days before their meeting at Elta (N/239). Oshri wrote to Shahar that "regarding the price... I did a doctoral dissertation of 3 hours...He then elaborated on various HP products and ended with "Trust me, we are the cheapest and in a meaningful way." According to the claim, this is correspondence with a clearly competitive content, as a qualifying piece of evidence, which is inconsistent with the claim of an arrangement. However, the correspondence revolved only around concern about HP (ignoring another claim by Oshri that HP had no chance to begin with, p. 4458, paras. 8-9; and contrary to Wee's claim that her win was guaranteed in advance). The correspondence does not relate to the other suppliers - Harel and Triple C - whose proposals they submitted to Elta following the coordination were recently forwarded to Levi, and the latter knew that these coordinated offers were higher than its own offer, and in any case did not pose a threat to it and would not even be able to serve as leverage to pressure it to lower the price.
The bottom line: Oshri's conduct, the fact that he spurred Shahar or acted in the face of a competitive concern - mainly from other manufacturers - does not detract from the conclusion that an arrangement was made with Harel and Triple C to coordinate the bids at Balam Indra, that Oshri was a party to this coordination arrangement, both as a (covert) party to coordination correspondence and later when he received the competitors' proposals from the competitors themselves, all while he was working with Mordechai and Elta.
Note: The application of the Competition Law to the coordination of the subject of the Indra Competition Law
- In response to the indictment, Zeiger claimed that the buyer in the project - Indra - is a Spanish company and therefore the Israeli Competition Law does not apply to the transaction with it (paragraph 11 of the reply to the indictment of December 11, 2017). Zeiger and Harel did not repeat this argument in the section relating to Balam Indra in their summaries.
- Either way, the argument should be rejected.
The arrangement for coordinating the proposals was made entirely in Israel. The offense was completed in Israel at the time the arrangement was formulated. The purchase of the products by the foreign company is not part of the elements of the offense and does not matter with regard to the application of the Competition Law to coordination (Criminal Case (Jerusalem District) 385/98 State of Israel v. Tagger Ltd. at paragraphs 20-21 (April 13, 2003)). The parties to the arrangement worked with Elta, not with Indra. It was ELTA that asked for the price quotes. ELTA is the one to which the parties submitted their coordinated proposals. This, too, is sufficient to bring about the rejection of the claim. It should be noted above what is necessary that ELTA acted in the matter in the framework of a joint project with Indra and against payment (P/164, Mordechai's testimony, p. 1128, paras. 22-24, p. 1188, paras. 6-12, p. 1195, paras. 1-5; p. 1240, paras. 1-5). Hence, the coordination arrangement also established libels to harm competition against Elta, which is an Israeli company, even though the latter acted on the matter for Indra.