Coordinating the proposals may also harm the price that a civil appeal will have to pay
- We saw above that the defense claimed that a certain supplier worked with the project and the project chose it, the competition became a façade. These arguments were rejected above, whether in relation to VMware Labs or in general.
- Even detached from the aforesaid, even if actions performed by a supplier vis-à-vis the project – such as a pilot or a characterization – gave him an advantage or priority, the defense did not claim that this constituted an obligation in relation to the price that the supplier would receive, or that the project and the supplier also closed the price component between them. The procedure conducted by the procurement entities from the moment the matter was transferred to them, including a request for price quotes, was also intended to ensure that the civil appeal would receive the best offer, i.e., even at the cheapest price.
- From the evidence that was brought, it clearly emerged that to the extent that as a result of the BLAM proceeding, cheaper bids were received from competing suppliers, a civil appeal could have gone back to the supplier who had worked with the project in the first place and demanded that it make a more attractive offer in light of the other bids received, in a way that could have led that supplier to improve its bid in order to ensure its winning of the project. The evidence showed that this had happened in various cases in the past.
This picture of things became clear from the testimonies that were heard, including the testimonies of Oshri and Shachar (Oshri: p. 4894, paras. 12-18, from the testimony there in relation to VMware Labs, it emerged that if Harel had offered a lower offer than Wei at the VMware Lab stage, there would have been no choice but to lower the price; p. 4843, paras. 7-24, where he testified that in another case Wee was required to make a lower offer, Despite his claim that the project favored Wee, in light of a lower competitor offer from Harel; P/214, paras. 104-121, where Oshri confirmed that a cheap price quote by the competitor could cause the civil appeal to be retracted with a demand to lower the price; Shahar: p. 2712, para. 18 - p. 2713, para. 8, where he testified that even if lower competitive bids do not cause another supplier to win, they will lead to a civil appeal demanding that the supplier who worked with the project lower the price of his bid, while confirming his statement from the investigation, P/557(2), paras. 576-582).
- In other words, coordinating bids is relevant not only to the question of the identity of the winning supplier, but also that it may harm competition in terms of price. In other words, it is also in the sense that the client – whose coordination was made without his knowledge – is prevented from receiving genuine offers and, if necessary, contacting the supplier with whom the project was conducted, demanding to improve the price quote he submitted.
Addressing Harel's Additional Claims
- Harel and Zeiger claimed in their summaries that Harel competed for the project, that its managers had been fighting for it all along, that Harel had an agreement with a civil appeal regarding the sale of VMware software (P/44), and that while Harel and its managers were competing, Gilad chose to operate behind the backs of his superiors, to give up the project and to coordinate prices with Shahar (paras. 284, 298 of the summaries; in the oral summaries, Harel sought to be more precise in the argument and claimed that the real competition between Wii and Harel in the project was at the previous stage. Shui began working with the project's personnel, p. 6995, paras. 23-24, with reference to the email correspondence N/172 of July 2009 and to the claim that Oshri testified that the first contact with Levy was made back in July).
- In any case, Harel's claims that it competed for the project attest, as already noted above, at least to the feasibility of competing with VMware Lab. Harel also refers in her summaries to Peretz's testimony, according to which his position even in the stages of the procurement process and at the time of the pricing by the procurement authorities was that the order should be issued to Harel (N/21) in view of the agreement with it and not an accompaniment. As noted at length above, all of these undermine the claims of competition for the sake of appearance.
- With regard to Gilad, Harel argued that it was inconceivable that he did not know that Harel was competing for the deal and that he acted contrary to the position of his superiors, out of a private interest, and deliberately against Harel's interest. Gilad was not brought to testify. No basis was laid for Gilad to act in the case of the indictment in question against the position or direction of any of the Harel members (the email correspondence N/172, from which it is evident that Mualem, the CEO of Harel, had an attempt to promote the purchase of VMware software from Harel, was from July 2009, a few months before the BALAM, without any real evidence being brought regarding the position of any of the Harel people regarding the project in question at a later date). and in particular at the time of the publication of the BM). Harel and Zeiger did not refer in their summaries regarding this charge to Zeiger's testimony in relation to any position or instruction he gave regarding the VMware Lab. Indeed, the coordinated proposal submitted by Gilad on behalf of Harel in the third indictment was higher than Wee's proposal – as coordinated – and it was Wee that won the project. However, there is no room to examine Gilad's conduct at the Balam Task Force, which here is detached from the overall picture, detached from the general coordination of projects in the civil appeal that is the subject of the first indictment (coordination to which Zeiger was also a party), and while ignoring other projects in which the result of the coordination was that it was actually Harel who won. In this situation, it cannot be said that Gilad acted contrary to Harel's overall interest. Nor was any evidentiary basis presented that Gilad acted to promote any personal interest of his own (and speculation that he may have wanted to help a friend or that he may have estimated one way or another regarding Harel's chances, without any support, is not enough).
- In her response to the indictment, Harel claimed that at the relevant time it was the only company among the defendants that had an agreement with a civil appeal regarding the purchase of VMware software (paragraph 13 of the reply, with reference to N/44). In the summaries, Harel referred to Zeiger's testimony that in view of the civil appeal agreement, she was obligated to buy VMware software licensing from Harel as well, and claimed bullying conduct by the civil appeal against Harel (p. 5526, paras. 14-19; Zeiger also referred to an explosion between Rami Saratani, manager of the Maman factory, and Mualem, Harel's CEO in relation to the procurement of VMware; see also N/21, which refers to the instruction not to work with Harel).
Harel's arguments are of no use to her.