Thus, it is clear from Zeiger's words that there was a competitive concern, and that even when it came to the contents of the Comptroller's agreement, Harel was concerned about the possibility that in the end a different, cheaper supplier would be found, and that she would miss the project (see also Zeiger's words in his interrogation, P/222, para. 62, according to which he was aware that Harel had to be with the cheapest prices in order to win).
- The testimonies of the Civil Appeal personnel also revealed that they used to ask for price quotes even when the contents of the equipment included in the Comptroller General's agreement were discussed. This was done in order to obtain the best prices (testimony of Mordechai, p. 1145, paras. 5-10, where he testified that even when it comes to the Accountant General, he turns to other suppliers to see if there are cheaper prices; testimony of Shkanevsky, Purchase Purchase in Maman, p. 1044, s. 17 - p. 1045, s. 21, where he testified that even though all the contents are included in the Comptroller General's agreement, he is not obligated to compete and can enter into a direct contract with the supplier, In practice, there is value in holding competition in order to maximize the discount and to lower the price; See also Testimony to the Name, p. 2127, paras. 18-25; Mordechai added in his testimony that the request for proposals from other suppliers was also intended to ensure that Harel did not charge more than the agreement of the Comptroller General, pp. 1225, paras. 20, 6; p. 1172, s. 23 - p. 1173, s. 7).
As stated above, the fact that the contents of the equipment were included in the Comptroller General's agreement does not mean that there is no possibility that another supplier will be able to offer a cheaper price. This is clearly evident from Zeiger's own words (as cited above). This was also evident from other testimonies (Shahar's testimony, p. 2932, paras. 12-18, where he testified that there are situations in which Wei obtained a greater discount than the Comptroller General's agreement and received better prices; P. 2934, paras. 18-26, where he referred to the fact that there are cases, even if exceptional, for discounts higher than the Comptroller General's agreement; Oshri testified that he could prove that in a certain project he could give better terms than the Comptroller General's terms; p. 4135, paras. 12-14). As stated above, this was the state of affairs in the Bluray project, which Wei won – prior to the settlements that are the subject of the indictment – against Harel's anger and even though the contents were included in the Comptroller General's agreement and while giving a discount at a rate that exceeded the assumption in the Comptroller Agreement (see paragraph 96 above; and see also Zeiger, P/222, para. 62, where he said that he was aware that Harel had to be with the cheapest prices in order to win).
- In addition, when it was a matter of mixed contents – i.e., the contents of equipment that were partly under the Comptroller's agreement and partly not – the position of the civil appeal was even more so that the agreement did not apply, and it used to conduct pricing between different bidders (e.g., the testimony of Peretz, p. 1735, paras. 14-20, where he testified that he had made it clear to Zeiger that when there are components that are not in the Comptroller's agreement, the civil appeal opens the procurement to competition; p. 1571, 20 - P. 1572, S. 7, where Peretz testified that when Zeiger claimed that a project was entitled to him because it included components in the agreement of the Comptroller General, Peretz bluntly waved it off; Mordechai, 1143, s. 16 - p. 1144, s. 4; Zeiger explained in his interrogation that when there are components that are not in the Comptroller General's agreement, another supplier can offer a low price for these components, so that in general, his bid can be the winner, P/223, paras. 334-344; See also Zeiger's words in his interrogation, P/224, paras. 84-96, where he testified that this was a "gray area" with all the uncertainty implied by it).
- Obviously, even if Harel believed that the civil appeal was obligated to her by virtue of the Comptroller General's agreement and that her application for a pricing proceeding constituted a breach, as we saw above, this does not permit an arrangement to be made for the coordination of bids in contravention of the Competition Law (see paragraph 180 above).
- Summary of a point on the general level: The Comptroller General's agreement between the civil appeal and Harel does not guarantee Harel's win in advance and does not rule out the existence of a pricing proceeding. The Civil Appeal used to hold competition even when the contents of the project were included in the Comptroller General's agreement in a way that created a competitive concern for Harel.
- Returning to the Baltimore Commander – in light of all of the above, the argument that since a significant part of the equipment was under the Comptroller General's agreement, Harel's win was guaranteed or that Harel was a single supplier whose win was known in advance. It is clear that even if Harel had a competitive advantage in view of the Comptroller General's agreement, at least there was a feasibility of competition, and that ELTA sought to receive genuine offers and to hold a pricing that the defendants thwarted in the coordination arrangement between them. For the entirety of the matter, it should be noted that even in Zaguri's words, to which Wei referred that "there is no competition in a framework agreement" (pp. 2220, 18-20) there is nothing that she sought to find in them, while later on Zagori clarified that an exemption from a tender does not constitute an exemption from competition, and how can this be done to say that there was no competition between the suppliers prior (ibid., paras. 25-31).
Additional Arguments
- Wei and Harel also sought to build on the testimonies of Shachar and Naveh and statements according to which it was Harel who would have won the Baltimore project in any case, regardless of Wee and Triple C's proposals (e.g., Shahar's testimony, p. 3115, paras. 21-22 that there was no chance that in the world Value would have won; Naveh's testimony, p. 107, paras. 1-2 that Gilad would win in any event).
We noted above that in large parts of Shachar's testimony it was evident that he was trying to adapt his answers to the defendants' interests, and that Naveh's testimony left question marks and perplexities in an attempt to minimize the acts in which he was involved and to minimize their severity (paragraphs 49-50 above). This impression was also evident when it came to Shachar's testimony in relation to the Baltimore police station. In his testimony to Attorney General Wei and Oshri, Shachar confirmed, lightly and casually, that the coordination of the offers and prices sent by Gilad were part of "that play" of which the civil appeal was part of and was behind (e.g., p. 3108, paras. 14-15). However, at the end of the day, after repeated evasive answers, and in response to the court's questions, Shahar confirmed in his testimony what he said in his interrogation that Gilad "does not want us to submit less than what he submits in order for him to win" and that if Wei submits "at the price that he (Gilad) is asking for, his (Gilad's) chances of winning are higher" and that if he (Gilad) makes a lower bid than Harel's, it is possible that "IAI would have approached Harel and asked him to lower the price(See p. 3111, paras. 22-24; p. 3115, paras. 2-8, paras. 15-16, and see the course of the investigation in this context, both from p. 3110, s. 3 onwards, and afterwards until p. 3116, s. 9; and the recalibrated answers, the convoluted, the difficulties and the attempts to retract his remarks, while adopting, time and time again, the explanations offered to him by the defense, whether he was exhausted when he said what he said during the interrogation, among other explanations; while providing unreliable and unreliable answers and answers; The same is true of Naveh's testimony, who, despite the evasive impression that she aroused, confirmed that Gilad had given 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)). These words of Shachar in his testimony, on the basis of what was stated in his interrogation, and which should be clearly preferred, undermine the defense's arguments of competition for the sake of appearance or the lack of feasibility of competition, in an attempt to negate the meaning and purpose of the coordination.