Supplementary note: Coordinating proposals at an initial stage is also invalid

340. The coordination of this indictment was done at a preliminary stage of receiving price quotes – in light of the project's request to issue an RFI to the equipment suppliers and in light of Peretz's directives regarding the content of the price quotes that should be demanded from the suppliers – and all before the meeting of the procurement committee at Elta.
341. Although this is an initial stage, it is an integral part of the competitive process. Participants in the competitive process – in all its stages and parts – are required to act independently and without coordination.  The price adjustment in bids, at every stage of the competitive process, falls within the hard core of the absolute holdings and is prohibited by the Competition Law.
342. The Supreme Court insisted that the coordination of competitive proceedings is a sick evil, while referring to the prohibition on making restrictive arrangements in relation to competitive proceedings of various types "tenders, like tenders and other frameworks for examining competitive bids, in accordance with the circumstances" and not just a "formal tender" (Ben Dror at paragraph 43; See also the Ben Dror (District) case at paragraph 32).  The prohibition therefore also applies to the coordination of bids at the initial pricing stage.  Coordinating bids at this stage also undermines the purpose of holding a competition in order to receive the best bid for the client.

Coordinating bids even at this stage may harm the competition and the client.  For example, due to the exit of competitors at an early stage of the proceeding in light of high bids submitted in a coordinated manner (in our case: Wii and Triple C); For example, due to the anchoring of an initial price that may be higher than the price that would have been received had it not been for the coordination and which can serve as the starting point for the continuation of the proceeding (in our case: the price of Harel's bid that was matched); For example, because if the principal had received genuine offers that were lower, he could have demanded a reduction in the price from another bidder who, as far as he was concerned, had an advantage in other aspects (as Shahar testified, that this is how ELTA could have made him a bid, without coordination, which was lower than Harel's, see paragraph 337 above).  Additional testimonies, including in relation to other charges, also show support that proposals submitted at an initial stage (and of course also coordinated) affect competition down the road (e.g., the testimony of Alex Gendelman, Project Man, p. 845, paras. 10-16; Naveh, p. 216, s. 16 - p. 217, s. 20, the initial price quotes can be used as bids in the Balam at the procurement stage; p. 88, s. 1-15,  There, he confirmed his statement from the investigation, P/4, paras. 295-312, that low price quotes by a competitor would lead to a demand for a price reduction; See also Shkanevsky's description of procurement in Maman in relation to pricing in the early stages and the effect of the bidding stage in the initial stage on the continuation of pricing, p. 1085, s. 10 - p. 1086, s. 10; See also Shahar's testimony, according to which a request for a proposal from the project (and not from the procurement) is in fact the beginning of the procurement process, p. 3607, paras. 19-21).

343. Therefore, the defense's arguments should not be accepted and they do not change the incriminating conclusion.

The Fourth Charge: The Result

344. The result of the aforesaid is that it has been proven, beyond a reasonable doubt, that the coordination and restrictive arrangement that is the subject of the fourth indictment – Baltimore Police Station – between Wee, Harel and Triple C, all as described in the fourth charge. Therefore, I convict Wee, Harel and Triple C of the offense of a party to a restrictive arrangement under section 47(a)(1) of the Competition Law, as drafted on the eve of the commencement of Amendment No. 21, together with sections 2(a), 2(b)(1), 2(b)(3), 4 and 55A of the Competition Law.  The conviction is also based on section 23(a)(2) of the Penal Law.

Oshri and Nahum - Section 48 of the Competition Law - Officer's Liability

345. As part of the fourth indictment currently under discussion, Oshri and Nahum were charged with offenses under Section 48 of the Competition Law.
346. For the reasons detailed above in the discussion of section 48 in relation to the previous charges, here too it was proven that the elements of the offense under section 48 of the Competition Law were fulfilled in Oshri and Nahum with respect to the fourth charge and the date on which it was committed: both are active managers in companies; Wei and Triple C were convicted of the offense of a party to a restrictive settlement in the charge here; Oshri and Nahum were not able to prove that they had done what was required for the purpose of supervision and to prevent violations of the Competition Law.

The Fifth Charge

The Fifth Charge: Anemones - Balam from June 2010

347. The fifth indictment was directed at Shachar and Wee, Gilad and Harel, Naveh and Triple C. According to the indictment, on June 7, 2010, ELTA applied for price quotes for the Anemone project.  The defendants were credited with being a party to an arrangement whereby Harel and Triple C would submit higher bids than Wee's bid in order to enable Levi to win the Anemone Strike.  According to the allegations, the parties submitted their proposals in accordance with the arrangement, with Wei being chosen to carry out the Anemone Strike in the amount of approximately $360,000.  It is also attributed to the defendants in this charge that they presented Elta with a false representation according to which their proposal was submitted independently, without consultation, coordination or contact with another bidder, and in any event they did not disclose the fact of coordination between them (the misrepresentation), and that based on the misrepresentation, ELTA's assumption regarding the validity of the bids was accepted and Wee's bid was accepted as a winner.  Oshri and Nahum are credited with not supervising and doing everything possible to prevent an offense under the Competition Law.

The case of Shahar, Gilad and Naveh ended, as stated above, in plea bargains.  Shachar and Gilad were convicted of the offense of being a party to a restrictive arrangement with respect to the Anemone Alliance (without the offense of fraudulent receipt of something being attributed to them in the framework of the arrangement with him; in this regard, the possibility of convicting the companies to the extent that the guilt is proven, see the discussion at paragraphs 201-214 above).