The picture that emerges is clear. It is consistent with the testimony of the Civil Appeals Officers, according to which activity against the project does not guarantee the win. Even after a supplier deals with the project and performs preliminary actions for it – such as specification requirements or configuration – he still has no certainty about winning. The same was also said to the suppliers and to Oshri himself that he knew that at this stage the win was not in his pocket. Certainty – and a final decision on the winner – is formed only upon receipt of an order after the conclusion of the procurement proceedings. In any case, in the earlier stages, there is at least the possibility of competition due to the uncertainty. This undermines the claim of apparent pricing proceedings.
Support for the above also arises from the testimonies of Shahar and Naveh (Shahar, p. 3192, s. 14 - p. 3193, s. 2; Shahar referred in his testimony, albeit not easily and evasively, to the concern that even after the pilot was carried out and worked by Wei with the project, a competing bid would be submitted in the bidding of the procurement evaluation, and "there would be problems along the way"; P. 3212, paras. 1-2, where he testified that "winning means that the procurement file is closed... Until the procurement file is closed, there is really no winning", even though he later confirmed what was offered to him by the defense to qualify the matter; Naveh, p. 149, s. 17 - p. 150, s. 14, where Naveh emphasized that until there is no order, the supplier is not chosen, even if he is preferred by the project and works with it (a carrier)).
- Manufacturers' testimonies – Manufacturers' representatives also testified that the performance of a supplier's actions vis-à-vis the project, including feasibility studies or characterization, are marketing efforts by the supplier that are intended to promote the supplier's chances of winning, but which do not necessarily guarantee a win. Thus, Lior Lavid, an IBM (Lavid) member, testified that conducting a POC (proof of feasibility/capability) of the project with one supplier does not necessarily require that later that supplier is the one from whom the contents will be purchased, and that there is not necessarily a connection between the two things (p. 6478, s. 12 - p. 6479, s. 4). When asked about the establishment of the lab by VMware Wei, Levid replied that it was a "pre-sale" effort that was made in order to win: " Every company that makes a free effort invests its time and money for an option to win the project, and they don't always win" (p. 6480, paras. 6-22; See also the testimony of Rezinsky, a VMware man who referred to POC editing as part of "sales efforts," p. 2509, paras. 1-3, and that this does not necessarily have significance or advantage for the future, paras. 16-25; And also in the testimony of Noy Mantap, to which Harel and Seiger referred in the summaries, regarding a lengthy characterization process in the involvement of the supplier and the manufacturer vis-à-vis the project and the manufacturer's preference that the particular supplier would win, p. 6219, paras. 1-5, there was no mention of a guaranteed win).
- Summary of the point: The general argument that the supplier's activity vis-à-vis the project personnel – including the establishment of a pilot, feasibility study, specification of requirements, etc. – completely nullified the feasibility of competition, turned it into a competition for appearances, or denied the possibility of the procurement bodies to conduct a competitive process and submit requests for price quotes (and in this regard, see the course of events in Balam Oranim v. The subject of the eleventh indictment, which clearly testifies that in practice, even where one supplier has performed preliminary actions, another supplier can submit an offer and even win, paragraph 667 below). In any event, such activity of a supplier vis-à-vis the project entities does not justify coordinating price quotes behind the client's back or qualifying them.
With regard to the indictment now under discussion – the VMware Lab – the state of affairs clearly emerged from the evidence, including the testimony of Oshri himself, who claimed that even in the post-VMware stages, she had set up a pilot, and when the VMware was removed, Oshri knew that the win was not in Wee's pocket, that she had to compete, because he had been told that there was a competition, and Harel herself claimed that she had fought for the VMware Lab (see paragraphs 268-269 above).