The claim that the project chose Wei and the competitive process was nothing more than a façade
- The main argument raised by Wei and Oshri in their summaries is that in the third indictment, too, the technical management of the project – especially Kandelstein, the head of the team – chose Wei and the competitive process was intended to disguise this and was done only for the sake of appearance.
- Even before we go into all the details and layers of this claim, we will note that Harel, for her part, claimed in her summaries, inter alia, that she competed and fought for the project and that in accordance with the agreement between her and Civil Appeal, she was the one who should have accepted the invitation, but that Gilad waived it in the improper coordination (paragraph 294 of the summaries). This may be enough to knock the ground under Wei's claims.
- Wei and Oshri argued that the factual basis laid out before the court substantiates the claim that the competition in VMware Lab was prima facie.
In this context, they argued, inter alia, that Levi had an advantage in everything related to VMware's technology in view of its experience, knowledge and level of certification, which was higher than that of other suppliers (Oshri, p. 4494, paras. 8-19, at the same time, Oshri noted that Harel and Binat were also partners of VMware, and later on that Triple C could also sell VMware to IAI, p. 4495, S. 17-19); that Oshri was the one who enlisted Kandelstein to test the technology in order to bring it into the project; Because at the request of the project manager, it was Wei who carried out the pilot; and that Oshri understood that Kandelstein preferred Wei as the one who did the lab (Oshri, p. 4496, s. 21 - p. 4497, s. 5; p. 4497, s. 10 - p. 4498, s. 5; p. 4499, s. 20, with reference to the clarification regarding the differences between the software versions that Kendelstein requested from Wey, N/237); Because since the content of the proposal also included elements of NetApp, Harel could not provide the solution because at that time she was not a partner of NetApp (this argument was rejected in the framework of the hearing of the second charge, see above at paragraph 186, which is stated there well for our purposes); Oshri testified that Wei invested and took quite a few actions to establish the laboratory, and according to him, Kandelstein said that if the laboratory is established to the satisfaction of the project, the order will be issued (p. 4517, s. 13 - p. 4518, s. 2); and that Wei urged Kandelstein in order to promote the receipt of the invitation (e.g., N/250, N/251). Wei and Oshri also pointed to excerpts from Kandelstein's testimony in which he testified that since the people of the project were satisfied with Wee, there was no reason to change the supplier or the possibility of dismantling a laboratory that had been established (p. 801, paras. 15-24, p. 802, paras. 5-10, there with reference to a follow-up project, but see also his earlier statement that accepting the proposal from Wei is not the end of the process, which must undergo a process, including procurement. and that he (Kandelstein) is not the one who issues an order and pays, p. 800, s. 18 - p. 801, s. 2); that the procurement does not interfere with the doubt that is preferred by the head of the project (p. 755, paras. 3-5); that if we are dealing with a recognized and accepted supplier, the purchaser has no reason to object (p. 756, paras. 11-17); that if the procurement seeks to switch to a cheaper supplier in order to save $1,000, the project will not agree (p. 803, 19-21, ibid., with respect to the purchase of additional components for an existing project); and that he does not recall a case in which he asked to work with a specific supplier and the procurement officer chose another supplier (p. 750, paras. 22-24). According to Wei, this is even more true in a project related to the Iron Dome, with security sensitivity, and in light of the concern that arises about the introduction of new technology.