In the margins of these words, it should be noted that during his testimony, Shahar described, as an innocent distraction, a conversation that took place between him and Oshri after the interrogations. He described that "one of the things that Oshri told me was why did we need it in the first place? As if it was possible to do without that either, and in retrospect it's so true because you know, I really, I really think no to the protocol, I really believe that in the end the result would have been the same and if we had stood up for ourselves, you know, what to do, we didn't do it but yes, I believe in it" (p. 3331, s. 4-10). These words, which Oshri said to Shahar, in the plural, in relation to the coordination with the other suppliers, can also provide some support for Shachar's testimony regarding Oshri involvement and his knowledge of the conduct in its entirety (and this does not mean that Shahar immediately afterwards surrendered to Oshri and after he presented him that Oshri did not know about the coordination, Shahar corrected his testimony and noted that he did not say that Oshri knew about the coordination correspondence, p. 3331, paras. 10-14, in order to change it in a real way).
In her summary, the accuser noted that she had taken precautions and did not seek to convict Oshri sweepingly, and only on the basis of Shahar's testimony. However, with regard to the indictment at hand, Shahar's statements from which it appears that Oshri was aware of the conduct of the coordination with Gilad and Harel are clearly supported by a real-time perspective – namely the correspondence P/296, and they are well consistent with the picture of Oshri's deep involvement in the project as the tone setter on Wee's part. Since Ashori knew about the coordination in real time, agreed to it in his behavior, and acted personally to promote Wei's interest in the project, he should be seen as a party to the arrangement.
- We will now turn to examine Oshri's version of the settlement that is the subject of the third indictment and his explanations regarding Harel's proposal in coordination that Shahar conveyed to him. Later on, we will deal separately with the main argument made by Wei and Oshri that VMware Lab's Laboratory was only a competition on the face of it, after the project people had already chosen Wei anyway and promised her the win.
- Oshri confirmed in his testimony that he had received the e-mail message in which Shachar had conveyed Harel's (coordinated) proposal, that he had read the message and that he had opened the Excel file attached to it (Harel's proposal) and had reviewed it (e.g., p. 4525, paras. 1-3). In his main testimony, Oshri claimed that in real time he believed that Shahar was forwarding Harel's offer to him in order for Oshri to help Shahar compete with Harel's offer of "come and help me fight this" out of concern that at this point in time Harel's offer better prices than Wee's (p. 4525, paras. 4-21). Oshri added that he assumed that Shahar received the offer from ManiTurk or the project manager (ibid.).
- This version is mineed. It doesn't hold water. It is not acceptable.
- The evidence presented clearly supports that it was Gilad who forwarded Harel's proposals to Shahar and Levi (P/63, P/566, which is found as it is in Shahar's email box, see paragraphs 232-233 above) in order to inform Shahar that Gilad acted in accordance with the arrangement and submitted Harel's proposal in a manner consistent with what Shahar had sent him earlier. From Oshri's statements in his cross-examination, contrary to what he said in his main interrogation, it was clear that Oshri knew that it was Gilad who forwarded Harel's proposal to Shahar (p. 4910, s. 7, p. 4911, paras. 8-11; and a review of the email correspondence itself, P/296, shows that it does not include a transfer from ManiTork to Shahar, and in any case it does not support Oshri's version in this matter; the explanatory version that Shahar could have transferred correspondence from Shlomi and deleted the transfer link, 4526, paras. 16-18, lacking any support or logic). This conclusion is also well consistent with the conduct of the matter in the second charge, where, after the coordination correspondence, Shahar conveyed to Oshri the proposals that they had forwarded to Shahar by the competitors themselves, and in a manner that left no room for doubt that the proposals had been received from the competitors and that Oshri knew about it (for example, P/291, P/294).
- It therefore emerges that Oshri knew that Harel had forwarded the offer she submitted to acquire ELTA as part of the VMware Lab. This is an awareness of a central element in the implementation of the coordination arrangement. Oshri claimed that in real time he was not bothered by the connection between Shachar and Gilad and the transfer of the offer from Harel Levy, and that he did not deal with it (p. 4911, s. 12 - p. 4912, s. 6). This argument is in itself puzzling. In his testimony, Oshri tried to give an innocent explanation for the matter and distance himself from the improper coordination. Thus, Oshri testified that he assumed that Gilad forwarded Harel's proposal to Shahar because Harel was dependent on Wii for the purpose of making a proposal for the NetApp components in the NBA (p. 4911, paras. 9-10). A similar argument that was raised in connection with the second charge was rejected (see paragraph 186 above, furthermore, Oshri's version in his testimony that Wee had given Harel a proposal for the NetApp component, p. 4522, paras. 3-5, there is no support or basis). In any event, here too, the aforementioned explanation should not be accepted. Even if we assume that Harel was required to purchase NetApp equipment from others and that it might have been possible to understand her appeal for this purpose, there is nothing in the correspondence that Shachar conveyed to Oshri that can serve as a basis, even if only a slight, for the fact that she could have been understood in this way. Oshri's argument does not explain why Gilad would transfer Harel's overall offer (and its prices to Elta) to Wii – as opposed to a request for a price quote for the purchase of nettap equipment only – in a manner that clearly supports both the alleged coordination and the fact that this is how Oshri understood things in real time. When asked about this, even by the court, Oshri did not have any real answers (p. 4911, paras. 12-23; his answers, including that it did not bother him, did not give him a reliable impression).
- Oshri's version that he thought that Shahar was passing on Harel's offer to him in order for Oshri to help Shahar fight and compete with Harel's offer (p. 4525, paras. 4-21) should not be accepted. No real evidence was presented that Oshri did anything in this matter (and the reference in the testimony, p. 4527, paras. 7-16 to the discount given at the price relates to the end of the process, two weeks later, and it does not change it, see also P/57, P/65 and what is stated in paragraph 239 above). In addition, Gilad submitted Harel's offer in a manner that matched the prices sent him by Shachar – that is, in coordination – so that the total price of Harel's offer was higher than that of Wee's offer. We saw above that Shachar testified that Oshri knew about the things and that they were done on his own accord. Moreover, Oshri – who was involved in the details and who himself had sent previous proposals by Wei to Kandelstein and the project (N/245, N/246, N/67, N/68) – knew very well that Wee's proposal was lower than Harel's, a matter that undermines the claim that it was necessary to help Shahar fight a higher proposal, or because he thought so. In addition, Oshri's claim is also inconsistent with Wee's main claim that the competition in VMware Lab's VMware Lab was a competition on the face of it, and that the win was promised by the project's people and was preceded by the publication of the VMware Lab. As long as the win is guaranteed, what is there to fight? (The attempt to square the circle, as if Wei's win was guaranteed but it was still necessary to persuade the Ordering Party against competing proposals, for example, p. 4525, paras. 17-21, was not convincing; it does not legitimize conduct vis-à-vis the Ordering Party after coordination with the Competitor and when the Competitor's proposal is coordinated and known to the Levy). In his testimony, Oshri pointed to a certain parameter – the duration of software updates – in relation to which there is a difference between Wie's proposal and Harel's proposal (p. 4908, S. 11 – P. 4909, S. 16 – while Wie's proposal for the project (P/298) relates to some of the components for software updates for a year, Harel's proposal states in relation to certain components – 3 years). Oshri tried to link the argument that he believed that by passing Harel's proposal, Shachar was trying to enlist him (Oshri) to fight (p. 4525, paras. 17-21). However, no infrastructure was laid for the fact that none of the people involved, the project or procurement parties at Elta, Wei or Harel, paid attention to this difference, at least not in real time. Oshri did not show that he referred to this in real time or that the matter was discussed at all. The coordination revolved around the prices, without reference to the aforementioned parameter (P/62). Harel's proposal was forwarded to Wei - to Shachar and Oshri – Gilad conveyed to Shahar the proposal that Harel had actually submitted after the coordination, without any response or complaint from Shahar. At that very time, Wei submitted her own proposal to Elta without making any real change, including in the aforesaid parameter (P/567, and see paragraph 235 above). It seems that no real significance was attributed to this matter. The impression is that this is an unconvincing attempt to cling in retrospect to a technical difference in order to construct a thesis to justify improper coordination.
- The conclusion that arises is that Oshri was a party to the settlement of the third indictment: VMware Lab. Oshri was very involved in the project. Oshri was knowledgeable about the details, he was the one who sent Wee's proposals for the project. He was the one who steered Wei's moves. Shachar and Gilad coordinated the submission of proposals to the BALAM. Shahar testified that Oshri knew about this and that it was on his mind (and in fact on the same initiative with him). The claim of Oshri's involvement is supported by the evidence sent to Oshri in real time, during the pricing in the NLM, when Shahar conveyed Harel's proposal to Oshri. Oshri tried to give different explanations for this and what he knew or understood. It follows that these explanations should not be accepted. Oshri also continued to act afterwards – and while Harel's coordinated proposal was placed before him and known to him – personally and vis-à-vis KeyTork in order to ensure Wee's win (p. 4527, paras. 9-16). All of this is sufficient to establish at the required level of proof that Oshri knew about the coordination arrangement, that he agreed to it and acted to advance Wei's case based on it, and that he should be considered a party to the arrangement.
- Further support for the conclusion that Oshri was a party to the coordination arrangement involving the VMware Lab Intelligence Officer appears from the fact that the coordination of the third indictment – the VMware Laboratory Coordinator – took place in the middle of December 2009, close to the time and less than two months after the coordination of the second indictment – VMware Lab Underground. In coordinating the matter of Indra, we saw that Oshri was a partner in a similar dynamic in which coordination was made (when Oshri was a direct, albeit covert, party to explicit coordination correspondence), after which the competitors sent Shahar the proposals they submitted to Elta in accordance with the coordination, and Shahar conveyed this to Oshri (P/291, P/294) and it was found that Oshri was aware of the coordination, because he agreed to it and acted with knowledge of it. Conduct here in a similar pattern, accepting the offer of Harel's competitor, after Gilad sent the proposal to Shahar, constitutes additional evidentiary support for the fact that Oshri was also a party to the settlement in the case of VMware
- For the entirety of the matter, we will briefly refer to the conversations that took place between Shachar and Oshri prior to their interrogation by the PA and before their statements were collected. These conversations provide additional support for the conclusion that Oshri was involved in the acts, and they also reflect on the weight of Oshri at the time of his interrogation. We will discuss this briefly.
There is no dispute that Oshri and Shahar spoke several times in the days leading up to their interrogations at the PA in light of Shachar's fear of the PA's investigation. Gilad and Zeiger from Harel were first interrogated on 6 May 2012. On May 17, 2012, the Authority's investigators visited a civil appeal (e.g., Docket No. 209, P/562 (p. 6 of the file)). The first interrogation of Shachar and Oshri was conducted on 21 May 2012, about two weeks after the interrogation of Harel's personnel. May 21, 2012 was a Monday of the week.