The evidence clearly testifies that Naveh acted in a manner that was in exact accordance with Gilad's e-mail message (and later in the testimony, despite the aforementioned evasion, Naveh confirmed that he had sent an offer in accordance with what Gilad had asked of him, p. 221, paras. 17-21).
- On February 2, 2010 – two days after Gilad's email – Shachar sent an email to Connecticut in which he noted that "Further to your request, a price quote for a list of items for the project is attached..." (P/7). Shahar attached to the announcement Wei's bid for the Baltimore project for a total of $515,255 (ibid.). In other words, Shahar submitted the hook offer for an amount that exactly matched the price he received from Gilad (Shahar added things in the body of the email, including suggesting that alternative technology and the possibility of using virtual servers be examined; these words and the claims based on them will be addressed separately).
- The picture that emerges from the evidence is clear. Gilad Shachar and Naveh were parties to a restrictive arrangement according to which Wee and Triple C would submit bids at prices that were matched and higher than Harel's, so that Harel could win Baltimore's WLM. The email correspondence speaks for itself: this is the coordination notice that Gilad sent to Shahar and Naveh with the prices for the V and Triple C offers, which expresses the arrangement in its details. The same is true of the emails sent by Naveh and Shahar later on, while submitting matching proposals that constitute the implementation of the arrangement. Naveh confirmed in his testimony, despite the evasive impression that it aroused, that Gilad had conveyed to them the prices he wanted them to put in the bids "so that he (Gilad) would win the project properly" (p. 107, paras. 1-3); Shachar also ultimately confirmed in his testimony that Gilad wanted Shachar to submit Wee's bid in accordance with the prices Gilad had mentioned "so that he (Gilad) would win the project" (p. 2690, paras. 10-18; Naveh and Shahar's attempts to ameliorate some of the above, while devoting themselves to the defense's arguments for the ostensible competition, and the claim that Harel was about to win anyway, will be addressed separately).
- Later on, we will discuss the conduct of the matter in the following months until Harel wins and the invitation to it is approved in July 2010. For our purposes, we should note that some time after the coordinated bids of Wii and Triple C were submitted, ELTA dealt mainly with Harel, alongside examining another offer from EMET (which was based on equipment made by Dell). Apparently, at some point, Elta approached Naveh with a request that Triple C submit an updated bid for the purchase (Knitürk, p. 449, paras. 14-32). In response, Naveh sent Gilad an email on April 18, 2010, in which he wrote: "Gilad, they are pressuring me to submit an updated proposal. Please send me a file - detailed for the work" (N/8). This email also clearly supports the conclusion regarding the existence of a restrictive arrangement and testifies that Naveh and Gilad were parties to the arrangement for coordinating proposals, and that Naveh was waiting for instructions from Gilad and coordination with him regarding the submission of a proposal down the road (the explanations that Naveh tried to raise as if he were not involved in the conduct of the project and therefore could not have supposedly made an offer without Gilad, 223, paras. 1-11, and they do not justify or legitimize coordination).
- It should be added that as mentioned above, Shahar, Gilad and Naveh were also parties to the general coordination arrangement that is the subject of the first indictment. Within the framework of the arrangement that is the subject of the first indictment, we saw that the term "leading" was used in relation to a company that had previously worked with a project or that wanted to win the project. In his testimony in relation to the coordination correspondence of Baltimore, Naveh used the same terminology and explained that Gilad sent Shahar and Naveh the coordination correspondence (P/18) with the prices to Levi and Triple C that "he (Gilad) led the project" and in order to "win the project properly" (p. 107, paras. 1-3). In addition, it is easy to see the great formal similarity between the price table that Gilad sent to Shahar and Naveh in coordination with the indictment in question (P/18) and the table that Shachar sent to Gilad and Naveh in Balam Indra, the subject of the second indictment (P/13, and "further to the summary" the subject of the first indictment, P/289). All of these should support the conclusion that the arrangement now under discussion – the subject of the fourth indictment – came and was made in continuation of the arrangement in the first charge. Without derogating from the fact that even if we are dealing with an independent arrangement and not a follow-up arrangement, this does not change the incriminating conclusion.
- In summary, it should be noted that Kenitork testified that he knew nothing about the coordinated e-mail correspondence between Gilad, Shahar and Naveh and that the offers of V and Triple C were submitted in coordination with Harel (p. 343, paras. 4-12; so did Shkedi and Zaguri, of Elta Acquisition, who were involved in the procurement proceedings in the Baltimore project at later stages, who knew nothing about the coordination. 1818, s. 9-16; p. 2194, s. 30 - p. 2195, s. 14). These things were reliable. No concrete evidence has been presented that could indicate otherwise. They must be accepted (claims that Shkedi was in good contact with Shachar at a certain time or that during a certain period of time they went to buy vegetables together, p. 1821, paras. 2-18, does not detract from the aforesaid; if anything, it is possible that such a relationship could have caused Shkedi to try to reduce some of the acts, and not the other way around). In his main testimony, Shachar testified that he did not tell Knitürk that it was Gilad who told Shachar the prices of Wei's offer (p. 2691, paras. 21-22; this is also consistent with his interrogation at the Authority, P/557(8), paras. 544-547; in the cross-examination, Shachar suddenly claimed, while prominently adopting the defense's version, that Knitürk knew about the matter, and claimed that he (Shahar) did not say this in his interrogation at the Authority because he tried to avoid incriminating the IAI personnel during the interrogation. p. 3014, s. 15 - p. 3018, s. 4; His testimony was mine-based, illogical, and manifestly unreliable; It is no coincidence that he did not have satisfactory answers to the questions he was asked by the court and to the question that arose from the position now that he spared the people of the civil appeal and not Oshri with whom he had a close relationship, and at the time of the testimony he adopted the opposite approach (ibid.). See also the convoluted testimony, pp. 3001-3006, in connection with L/577(1), paras. 324-335 and the difficult answer to the court's questions there).
- Interim Summary: The evidence clearly proves that Gilad, Shahar and Naveh reached an arrangement that the bids of the defendant companies – Harel, Wee and Triple C – would be submitted in coordination, so that Value and Triple C would submit bids at higher prices than those of Harel, so that Harel could win Baltimore's and that the parties acted to implement the arrangement and submit bids in accordance with it.
Events in the following months until the approval of the order for Harel in July 2010
- In their summaries, Wei and Harel also sought to build on the conduct of things after the submission of the bids in coordination and until the approval of the issuance of an invitation to Harel following a decision to grant an exemption from a tender in July 2010. According to the claim, this conduct testifies to the fact that there was no competition in Baltimore, and that it was a fictitious pricing.
- We will now discuss the conduct in the period of time following the coordination of the proposals. Later on, it appears that the defense's arguments should not be accepted and that these arguments do not legitimize or justify the coordination arrangement.
- As stated above, in January 2010, Kenitork submitted a request for price quotes from Baltimore, and the coordinated bids as a result of the coordination arrangement were submitted to Elta in late January and early February 2010.
- During the month of March 2010, and apparently before that and in February 2010, a number of meetings were held between Harel and the people of the project at Elta. The meetings also revolved around technical aspects of the project, and various requirements and tasks were clarified in relation to the project's content. Harel attributed importance to the meetings and saw them as meetings intended for an invitation. In one of the meetings, Kniturk apparently also participated from the procurement side (N/30, N/31, N/32; testimony of Kniturk, p. 448, paras. 21-24). Harel emphasized that this attests to a great investment on her part in the project (Testimony of Kinturk, p. 449, 1-3). Kenitork's testimony revealed that the meetings with the project personnel took place at such an intensity only with Harel, even though he also testified about meetings with A.M.T. in connection with a proposal that relied on Dell equipment (p. 449, s. 8-10, p. 455, s. 1-3).
- In between, negotiations continued between the project's personnel and the procurement personnel at Elta. On April 21, 2010, one of the project's staff contacted KeyTork and emphasized that despite a previous mistake made by the project personnel, the Baltimore project required only IBM-made equipment and asked to "open envelopes only from [IBM] equipment suppliers" (N/27). Knitork testified that despite these statements, and despite the project's preference for IBM-made equipment, the project was willing to consider a proposal for Dell equipment as well, and that there was competition between A.M.T., whose proposal was based on Dell equipment, and Harel (p. 456, paras. 3-15, p. 436, paras. 1-5, paras. 23-29; see also p. 437, paras. 1-2; see also email correspondence dated May 6, 2010, where a DELL-based proposal was mentioned as attached, 455, paras. 5-10; The proposal itself was not submitted).
- On April 24, 2010, Gilad sent an e-mail to Connecticut, at the end of which he asked to meet "in order to close." In response to this, Knitürk wrote on April 26, 2010 that he (Knitürk) had sat down with the project staff, and then a new date would be set for the meeting (N/33). In between, on May 4, 2010, an IBM representative contacted another IBM representative in order to receive a price quote for a maintenance service for Harel for the entire project's equipment, even one that is not IBM's (N/34).
- On May 4, 2010, a procurement committee was held in Elta in connection with the project (as appears from the email correspondence of May 6, 2010, in the scope of N/6 there; this is despite the fact that the minutes of this committee were not submitted).
- On May 6, 2010, Knitwerk sent an email to Peretz Maman, in which he updated Peretz on the status of the situation as of that point in time (within the scope of N/6). Kenitork notes that it is attaching the updated SOW after a number of updates made by the project, that the various versions were distributed to the suppliers, Wii, Triple C, EMET and Harel, because "WE and Triple C submitted initial bids and refrained from submitting additional offers, according to them, since the servers are 'pizzas' according to the Comptroller General's agreement and have no advantage in the balance of contents"; Because "Although the project is based on IBM servers, the computing truth is based on the Dell configuration. At this stage, the vendors don't know that this is just an IBM server configuration." Knitwerk informed Peretz that a procurement committee had convened with the VP of ELTA (the committee dated May 4, 2010); that the project is still undergoing various checks regarding its contents and that with regard to the contents of Harel's proposal, Kenitork raised various issues with Harel, including a permanent discount over the life of the project, and the expansion of support, and that he expects to receive an up-to-date offer from Harel. Harel claimed in its summaries that Elta had misled a distributor (EMET) by allowing him to offer Dell products after deciding on another manufacturer, IBM. In his testimony, Knitwerk explained that although the project initially preferred IBM-made equipment, the project agreed to consider at certain stages a Dell-based offer, that a fairly attractive offer was made by EMET, that meetings were also held with EMET, that at the end of the day Harel reached more or less the same prices, and that at a certain point the conduct continued only with Harel (p. 452, paras. 20 - p. 455, 3).
- On May 11, 2010, Gilad sent KinTork an updated price quote from Harel in the amount of $1,168,000 (N/35), and apparently prior to that, Harel had forwarded a draft of a letter accompanying the offer (N/6, email correspondence dated May 11, 2010). It is possible that at this stage the negotiations took place only with Harel (Knitürk, p. 454, s. 30 – p. 455, s. 3; on June 7, 2010, Harel apparently submitted an updated proposal, as appears from the preamble of N/9, N/26).
- On June 16, 2010, a procurement committee convened (P/48). The evidence shows that this is a second meeting of the committee (this is evident from the recording in the minutes relating to a change from a previous committee, as well as from what is stated in N/6 of 6 May 2010 regarding the convening of a procurement committee on Tuesday (4 May 2010)). The document noted Harel's offer of $1,100,000 and that Kenitork had been appointed as the negotiator for the project (P/48). Knitwerk testified that he may have been appointed for this purpose already at the previous meeting of the committee (p. 461, pp. 4-16). Harel pointed out in her summaries that in the document in question of the Procurement Committee, it was noted in one place that the form of engagement was "competition between suppliers", while in the comments it was recorded that "the issuance of an order is approved in accordance with the current pricing". She also tried to build on the answers that Knitork answered in his interrogation to begin with, and before he was presented with the full picture, as if after the committee the competition was intended to take place (p. 458, paras. 6-12). It seems that in doing so, Harel sought to find support for her claim that there was no real competition in Baltimore. However, Knitwerk explained in his testimony, after he was presented with the full chronology, that the procurement committee of June 16, 2010 was in fact an approval of the process prior to an order, and that the competition preceded it (p. 459, para. 28 - p. 460, para. 10). These statements are well consistent with the evidence and documents presented, and must be accepted.
- Harel subsequently forwarded a letter to Knitwerk and Peretz bearing the date of June 17, 2010, in which Harel undertook in relation to various matters, including the percentage of the discount for the life of the project and the period of service and warranty (N/9, unsigned draft; N/26 letter signed by Zeiger). Zeiger testified that the letter was the product of negotiations and that apparently he (Zeiger) issued the letter at Shkedi's request and that he did so in order to close the project (p. 5469, s. 21 - p. 5470, s. 2). On this letter, Shkedi wrote, at an unknown date, "ELTA intends to issue an invitation subject to this letter. Please initiate procurement for the equipment" (N/9, N/26). On June 24, 2010, Knitork updated Peretz on the state of affairs, forwarded him Harel's accompanying letter, and referred to a number of points that were still open (P/6, email correspondence dated June 24, 2010).
- On July 1, 2010, an application for an exemption from a tender was submitted to the Exemption Committee in Elta (P/25). In the form describing the contents of the procurement portfolio that was addressed to the exemption committee, Knitwerk wrote: "Companies that market IBM equipment were contacted due to the constraints of the project to purchase IBM hardware on servers. The WE and Triple C companies submitted initial bids but did not want to continue the negotiations since most of the equipment was under the Comptroller of the Staff's agreement through Harel. A Certified Computing Validation Offer for Dell Equipment Received Rejected... In light of the project request, one supplier was selected that will carry out the procurement process (both IBM and other manufacturers) and will also carry out integration work at Elta and the customer's site. In the negotiations with Harel, the prices that Elta had paid in the past for non-IBM equipment were examined , and these prices were set with the supplier (such as CISCO equipment, monitors, workstations, software)" (N/25, and see the testimony of Kinitork, p. 434, paras. 14-15, that he wrote the matter here; The timetable for the execution of the project was stated "immediate"). In the reasons underlying the request for exemption from a tender, Shkedi noted that "60% of the contents of the order were in a framework agreement with a supplier" and that "there is no Israeli manufacturer for the contents of the order" (on the second page of N/25, with respect to the fact that Shkedi was the one who recorded the matter, see p. 433, paras. 7-9, and Shkedi's testimony, p. 1882, paras. 5-16). Shkedi testified that apparently when a significant proportion of the contents of the procurement entered into a framework agreement with a certain supplier, it is possible to request an exemption from a tender (p. 1882, paras. 11-16; and see also the General Procedures, P/43, starting at p. 4 there). Wei and Harel emphasized in their summaries that Shkedi testified that "it is improper to ask for an exemption after making a balam" (P. 1885, paras. 6-8; P. 1895, paras. 7-10, ibid., in the context of tenders law). Zaguri, the head of the procurement administration at Elta and who was Shkedi's supervisor, testified that there was no difficulty in the fact that Kanyan applied for quotations even before an exemption from a tender was granted (p. 2201, paras. 11-15, p. 2202, paras. 3-4; Canytork also testified that there was no impediment to requesting quotes prior to the request for an exemption from a tender, and that the receipt of price quotes in this situation was also intended for the purpose of estimating costs. 360, s. 2-21, p. 376, s. 1-30). Wei and Harel tried to build on statements of one kind or another regarding the impropriety of the procurement procedures. We will discuss this below. In any case, the aforesaid does not support the conclusion that the Baltimore Police Station was a competition on the face of it or to justify the coordination arrangement with respect to it.
On July 6, 2010, the ELTA exemption committee approved the granting of a tender exemption (N/25, second page).