In support of the claim, Wei also referred to Oshri's testimony that the old servers located in Altrade were "like new", "in excellent condition", that Elta was enthusiastic about the condition of the servers and that she could provide them to the foreign customer as new (p. 4585, s. 11-12, p. 4585, s. 16 - p. 4586, s. 4). Oshri further testified that this is "a niche field, not a product for consumers" and that it is "to the point of impossibility" to locate such servers (p. 4586, paras. 14-24, although he added there that there is always an option for a website). According to Wei, this explains why the project manager stopped looking for other options after the servers were located in Alltrade and issued a single vendor exemption. Harel further claimed that she did not deal with used equipment at all (paragraph 380 of her summaries).
- The bottom line: the defense's argument is that prior to the issuance of a single supplier's approval, the project personnel conducted an examination, and it was found that Wii was the only one that could provide the required equipment through the servers located in Al-Trade, and therefore a single supplier's approval was issued indicating that Wii was the only option, the procurement was not allowed to deviate from this, and KinNetwork's request for offers from the Anemone Alliance was a fictitious pricing for the protocol only.
- I am unable to accept these arguments, neither on the legal level nor on the factual level. Nor do they justify or legitimize the coordination of the proposals, and to change the incriminating conclusion.
- On the legal level , the price adjustment of the bids in our case is found in the hard core of the absolute presumptions set forth in section 2(b) of the Competition Law, and it is prohibited. Therefore, it is not required to prove the potential for harm to competition. The argument that there was no point in issuing a warrant because only one supplier could have supplied the equipment (in our case) seeks to insert through the back door an argument that there was no potential to harm competition and undermine the absolute presumption (see also paragraph 275 above). This argument should not be accepted (and for general arguments raised by the defense regarding the applicability of the absolute presumptions, see below at paragraphs 1098-1101 below). The offense was formulated from the moment the parties reached an agreement, without even addressing the reasons that were at the basis of the departure to the LA.
- In addition, the approval of a single supplier form, as detailed above, is an internal procedure of ELTA that was not disclosed to the suppliers (including the defendants). The suppliers did not know about him at all (see paragraph 352 above). The defendants' arguments are nothing more than an attempt to hold on to a certificate of which they had no knowledge in real time in order to justify retroactive criminal coordination.
- Moreover, the very coordination of the proposals and the clear language adopted by Shahar: "Please do not send anything, not even by mistake. I will send you what to convey to Shlomi" (P/21, underline added), clearly showing that there was at least uncertainty and concern that the submission of uncoordinated proposals might harm Wei and in any case benefit Elta. As stated above, Oshri himself testified that there was no certainty of value that would win the transaction (p. 4722, paras. 22-23) and that the coordination was intended to increase the chances of it winning (see paragraph 360 above).
- The tension between the project and the procurement: It is possible to compete even when there is a single supplier's approval – the defense's arguments give decisive weight to the approval of a single supplier issued by the project, as if it were the be-all and as if it could negate any feasibility of competition through procurement. The allegations ignore the picture that emerged from the evidence regarding the role of procurement and the built-in tension that existed in a civil appeal between the project and the procurement parties.
Vered, who was the head of the Anemone Project in Elta, described the relationship and the tension mentioned in his testimony. As he testified, the project focuses on the technical aspect, the technological solution, and aspects of supply schedules, availability of equipment, and other considerations. Against this background, the project sometimes promotes the approval of a single supplier in order to speed up the process. Procurement is in charge of the financial side. He wants to ensure that Elta gets a contract at the best price and saves money for its coffers, and for this purpose conducts his own checks and inquiries.