Similarly, it is not the business of the competitors to "give grades" to the competitive process, to determine that it is not optimal or that it is only a "competition for appearances", and therefore they are entitled to coordinate their proposals. Even a competitor who is convinced that his win is guaranteed is not entitled to coordinate his bid with another because of this. He may submit an independent bid and hope that he will win. A competitor who believes that he is unable to compete or that in any case another competitor is the one who is expected to win, is open to him to make an independent decision not to submit a bid or to submit a bid that reflects his abilities. Coordinating improper proposals is not one of the legitimate options and amounts to a criminal offense.
Moreover, the competitive procedure is also relevant for the purpose of receiving the best offer and checking the engagement price. Wei and Oshri also did not claim that Levi was promised that she would carry out the project at a certain price that was agreed upon and decided. A request for quotation procedure can have an impact on the price that the client will be required to pay for the contents of the work (see below in paragraph 285). Coordinating bids deprives the client of both this advantage of the competitive procedure and this may also make him invalid.
- The argument that the competition in VMware Labs was a competition on the face of it should be rejected for another reason as well. This is an argument that is in fact a different disguise from the claim that in practice there was no competition in the NBA in question and that the coordination between Wii and Harel was not a waiver of the competition on the part of Harel and did not result in harm to the competition. However, this argument – beyond all the reasons cited above for its rejection, and beyond the fact that it stands in contrast to Harel's claim in her summaries that she fought for the project – essentially undermines the absolute presumptions set forth in section 2(b) of the Competition Law, which the coordination arrangement in our case falls within the framework of, and is liable to empty them of their content (see and compare: the Ariel case at paragraph 20). In any event, insofar as there was no feasibility of the competition, it was not clarified why coordination was required and why each participant did not act to submit an independent proposal without coordination (or to refrain from submitting a proposal independently).
The general argument that a supplier's preliminary activity vis-à-vis the project personnel – conducting a pilot, feasibility study, technical characterization, configuration, etc. – guarantees the final supplier of the win and turns the procurement team's procurement team into a semblance of competition
- We have seen above that Wei and Oshri's argument that the request for quotes for VMware Lab was a competitive proceeding for the sake of appearance only should be rejected in light of Wee's activity vis-à-vis the project and Kandelstein prior to the VMware Lab.
- Throughout the proceeding, the defendants raised a similar argument with general applicability. The argument, in essence, is that the supplier's conduct vis-à-vis the project personnel – which can include the establishment of a pilot, proof of feasibility (POC), technological characterization of the project's requirement, configuration, etc. – ensures that the supplier wins. The argument is that the procurement personnel issue down the road, as a matter of general phenomenon and conduct at IAI, is nothing more than a cover and competition for the sake of appearance.
- With all that has been said in VMware Lab, we have seen above that the claim is inconsistent with the evidence and testimonies. We will address this argument below, to the extent necessary, in the framework of the hearing of the following charges.
- At this stage, we will address the argument in the general format that was raised, and it seems that it should not be accepted. Even if the supplier's preliminary actions gave him a significant advantage, sometimes significantly, and even if such actions sometimes led to tension between the project and the procurement parties, who believed that in some cases they would not make the procurement process less optimal, the suppliers knew that the winning and ordering would be made only after the procurement parties' disciplinary procedures. The argument that the procurement procedures were a form of competition for the sake of appearance must be rejected. The procurement officials wanted to receive real offers and not coordinated futile offers. In any event, as already noted above, on the level of principle, in any case, the suppliers had to compete independently in the proceedings of the NCAA. The claim does not justify the coordination of proposals behind the back of the client and does not qualify such coordination.
- We will discuss the picture that emerged from the testimonies in relation to the aforesaid.
- Civil Appeal Factors – From the testimonies of the client, IAI personnel, both the parties on the project side and the procurement personnel, it emerged that the procurement bodies have independence, that they are not obligated to be satisfied with the position of the project personnel or their preference, that the procurement has its own independence and considerations, that it is entitled to conduct inquiries and a competitive proceeding, that the winning of a supplier is not final and is not guaranteed even if he acted with the project personnel and invested in investments. but only after the procedure carried out by the procurement bodies and when an order is issued; And that the suppliers knew this very well.
Thus, for example, Moti Vered, the head of one of the projects at Elta, testified that there are constant quarrels between the project and the procurement; that the procurement has additional considerations; that sometimes the procurement knows about alternatives to the engagement beyond what is known to the project personnel; and that the procurement has the independence to examine additional engagement options and not to accept in advance the project's position or preference as it is, even where the project believes that the conditions for engaging with a single supplier are met (p. 6390, S. 1-3, p. 6391, S. 9-19, S. 6395, S. 20-32, P. 6400, S. 17-19, P. 6407, S. 23-29). Similarly, Kandelstein, the person involved in the VMware lab, testified that if there is a significant price difference, it is possible that the project will end up working with a different supplier than the one it was dealing with in the first place (p. 831, paras. 19-24; and see also Oshri's testimony that although the project preferred Wee, Kandelstein explicitly stated that there was competition, and that Wee knew that the win was not in her own pocket, p. 4915, s. 17 - p. 4916, S. 9).