Naveh submitted Triple C's offer to Knitwerk so that the prices of the servers correspond to the price that Shahar sent him (P/23; in the body of the offer, Naveh stated that the servers are refurbished with new disks and that the delivery time will be 30 days from order). Triple C's total offer, according to the summary drawn up by Naveh, amounted to approximately $523,000, i.e., significantly more expensive than Wei's offer (P/23; Knitwerk indicated a close amount, see the summary table attached to P/50; it appears that in various liability components, Naveh indicated slightly lower sums than those sent to him by Shachar, but the weight of these components was relatively low, and did not change the fact that Triple C's offer was significantly more expensive than Wei's offer).
As we shall see below, at the end of the day, Wei, whose bid was the cheapest, won the BLM (see paragraphs 370-371 below).
- The picture that emerges from the evidence is that Shahar, Gilad and Naveh were parties to an arrangement whereby Harel and Triple C would submit bids at prices that were matched and that were higher than Wee's, in order to ensure Wee's win in the Anemone. The coordination correspondence by email is clear: first Shahar makes sure that Gilad and Naveh do not send bids independently and against his will, then he sends each of them the (higher) prices according to which Gilad and Naveh must submit the Harel and Triple C bids, in a manner that reflects the concrete details of the arrangement, and finally Gilad and Naveh submit price quotes that match the arrangement and in a manner that constitutes its actual execution. The arrangement and its purpose, to ensure Wee's victory, clearly arise from the Bible. They are also supported by testimonies in relation to the email correspondence.
Oshri, who was involved at various stages in connection with the sale of the servers, was asked in his interrogation by the Authority about the coordinated email correspondence (Oshri testified that he was not aware of the correspondence in real time). When he was presented with the email correspondence, Oshri explained that Shahar felt confident in the transaction since it was worth it that found the servers in UltraTrade, while adding that the coordination was "intended to increase Shachar's chances of winning" (P/212, para. 574). Oshri testified that there was no certainty of value that the transaction would be won (p. 4722, paras. 22-23, p. 4727, paras. 5-8) and that as far as Shahar was concerned, Oshri explained that by coordinating him, he (Shahar) "increases the chances" of winning the transaction, "because he (Shahar) knows that the customer will turn to requests for competitive quotes" (P/212, paras. 562-571, see also P/213, paras. 195). Oshri also understood that the arrangement in the e-mail correspondence was intended to ensure that Wei would win by way of coordinating the competing bids that would be requested, and in Oshri Sa'ar's words later on, "Shahar wanted to neutralize the competition" (P/212, paras. 634-640; Oshri's attempts to disapprove of the statements, to give them other explanations, except for the clear things he said in light of the coordination correspondence, sometimes after the intervention of counsel in a manner that had a prominent dimension of the directive, were not convincing at all, p. 4709, s. 13 - p. 4718, s. 25; Elsewhere, and in response to the court's questions, Oshri did not rule out the explanation that the coordination was intended to increase the chances of Wii winning and to prevent demands against it to lower the price in light of competing bids, p. 4724, s. 3 - p. 4725, s. 10, s. 9-10 are Oshri's words). Shahar confirmed in his testimony that he had sent Gilad and Naveh prices higher than the prices offered by Wei, in order for them to submit them to Elta, so that Levi would "remain a profit in the deal" (p. 2725, paras. 4-24, where he confirmed what he said in his interrogation, P/557(7), paras. 271-278).
- In the indictment, the defendants were also charged with the offense of fraudulent receipt.
- Shahar, Gilad and Naveh did not disclose their coordination with Elta and presented a false representation as if they had submitted independent and uncoordinated proposals.
- Knitork – he who contacted the companies in Balam Anemone and to whom the coordinated proposals were submitted – testified that he did not know in real time about the coordination of the proposals (p. 347, paras. 17-20; p. 348, paras. 9-10). Knitork testified that if he had known about it, he would have stopped, disqualified the competitors and returned to ask for instructions from his superiors (p. 348, paras. 11-13; p. 365, paras. 21-23). Knitwerk added that even though a single supplier was approved in the project and ostensibly he could have moved forward even without the BAM, if he had known about the coordination, he would have stopped the process and asked for guidance on how to proceed (p. 366, paras. 1-16, paras. 19-21, p. 367, 2-3). This testimony gave a credible impression and was not contradicted in any real way. It should be accepted (see also Naveh's testimony, p. 111, paras. 17-18, according to which Knitürk could not have known; for Shachar's suppressed version in his testimony, as if Shkedi had told him at a later meeting that Knitürk needed another proposal for the case, we will refer to it separately in paragraph 393 below).
Other parties in ELTA procurement who were involved in the continuation of the road and before the order for procurement was issued to the Wei company also testified that they did not know about the coordination. Shkedi, who was in charge of Knitürk, testified that he did not know about the coordination, "absolutely not," "there is no such thing," and that if he had known he would have turned to his supervisor, which is not something he could have ignored (p. 1817, paras. 17-24). Zagori, who was Shkedi's supervisor, testified that he did not know about the coordination correspondence, that when he first saw them during his interrogation, he was angry and that if he had known in real time, he would have referred the matter to authorized investigative bodies (p. 2195, paras. 15-28, referring to his words earlier, paras. 3-14). These testimonies have not been contradicted and must be accepted.
- In these circumstances, the elements of the offense of fraudulent receipt are also presented: fraud by submitting proposals in a bidding proceeding while failing to disclose the coordination of the bids (see paragraphs 27-28 above); Acceptance of the matter – in the assumption of ELTA regarding the validity of the bids and the proceeding and the winning of Wei (see paragraph 29 above), when the causal connection arises from the above testimonies that show that had it not been for the concealment, the procurement entities would have acted differently. Since the acts of fraud are based on another offense – a restrictive arrangement – while harming the competitive process of a public body and public funds, taking into account the financial scope (hundreds of thousands of dollars), and in view of the systematic nature of the acts, these are aggravating circumstances, in accordance with the criteria set out in the case law (see paragraph 31 above).
Continuation of the proceedings - after submitting the bids and until the issuance of the order
- For the sake of completeness of the factual description, we will briefly refer to the factual picture that has become clear with regard to the occurrence of the events after the submission of the coordinated bids until the issuance of the loan purchase order. Later on, we will deal with the defense arguments that were raised on the basis of these events.
- We saw that following the arrangement, on June 14, 2010, Gilad and Naveh submitted to Knitwerk the proposals of Harel and Triple C, and that they were higher than Wee's offer. Let us now refer to what happened in the following days.
- On June 15, 2010, Vered from the project sent an e-mail message to CaniTork in which he stated that he was attaching for the use of CaniTork the last price quote that Shachar had forwarded to the project (N/13, the message was also sent in a copy to Rosenthal from the project and to Mordechai; in the body of the notice, Vered noted that the purchase was for the equipment of an existing customer, that it was not possible to purchase computers of new models, but that identical models to those already used by the customer were required. Vered asked to let him know if problems arise). Vered testified that he sent the e-mail message to Kinturk together with Wei's proposal in order to make sure that KeyTurk had all the materials and Wei's latest offer (p. 6395, s. 5 - p. 6396, s. 10).
- Negotiation meeting with Wei – On June 17, 2010, a negotiation meeting was held in Elta between Wee's representatives – whose offer was the cheapest in accordance with the coordination – and ELTA Procurement (the testimonies indicated that sometimes such negotiation meetings were held in civil appeals in order to obtain an additional discount, for example, Oshri, p. 4733, s. 15 - p. 4734, s. 20; Zeiger, p. 5306, s. 22-31).
The evidence presented indicates that Shkedi and Knitork participated in the meeting from Elta Procurement, Shahar and Oshri Movi, as well as the CEO of Alltrade (see the documentation of the meeting from Oshri's email box, N/358, p. 4589, S. 4, as well as N/372 (p. 2); Oshri, p. 4588, s. 20, p. 4589, s. 7-9; Kniturk, p. 421, s. 9-23; Shahar, p. 3285, s. 1 - p. 3286, Q4; Shkedi did not mention the meeting or its details in his testimony, p. 1878, p. 17).