I therefore convict the defendant of the charges against him in Charge 1.
- Before I turn to the second charge, I see room to discuss some of the defendant's general arguments – the claim that what is alleged in the matter of the "inflation mechanism" is impossible, as well as the claims that it had no effect on the profit of the main contractors and on the selection of the subcontractors. The relevant evidence for these claims will be presented below.
"Interruption" between the charges: the defendant's main general arguments
Prosecution Evidence
Testimony of Ran Oppenheim (transcript of March 9, 2022)
Main Inquiry
- Lieutenant Colonel Ran Oppenheim has been serving in the IPS for 19 years, in the Construction Department in various positions, and since 2016 he has been the head of the Construction Branch in the IPS. The head of the Construction Branch professionally guides the District Construction Officer, but the District Construction Officer is not under his command (p. 653).
- The witness described the manner in which a project is carried out in the districts: an operational demand is issued, and this is translated into the professional language of construction. Estimates and plans are issued for the demand, and submitted to the system for approval. Usually at the estimation stage, a bill of quantities is built, and then the estimate is approved or reduced. As soon as the order is approved, the construction officer issues a work commencement order to the contractor, gives him time to get ready, and conducts field tours with him. The contractor is usually also required to make his own estimate. After giving instructions in the field to the contractor, there are also summaries, work diaries and correspondence (pp. 655-656).
- After the construction officer approves the performance of a contractor's work, there is another party who signs, and then the matter is transferred to the accountants, in which the various sections are often checked. However, these officials cannot know, for example, whether the actual thickness of the wall is 10 centimeters or 20 centimeters. There is no authority in the district above the construction officer to check in the field that everything written in the bill of quantities was carried out in the field (p. 657).
- The witness was referred for questioning by the police on December 19, 2017, regarding the theoretical possibility of inflating the cost of a project. The witness explained that at the estimation stage, it is possible to inflate for the purpose of unpaid documents. He also explained that after execution, it is possible to switch between section numbers of types of doors, types of wall thicknesses, and no one will know (p. 660). According to him, it is also possible to inflate quantities (p. 661).
- In the framework of indictment No. 4 (hereinafter), Sgt. Oppenheim testified regarding the roof sealing project at the Tel Aviv detention center. As will be described below in the framework of indictment No. 4, he took a measurement confirming the existence of actual inflation, when the defendant's claim regarding Oppenheim's incorrect measurement and the fact that he lacked appropriate professional training was not supported by measurement or other evidence on his behalf.
- According to the contract in the tender, the main contractor must present the subcontractors within two weeks of receiving the order, and the construction officer must approve them. If a construction officer is not satisfied with a particular subcontractor, he can "throw it away" (p. 654).
The witness was referred to Exhibit A/113 – a page from the IPS construction tender, which contains clause 2.c. The statute in the matter of subcontractors: "The client may disqualify a subcontractor without the need to provide explanations to the contractor." The witness confirmed that the IPS, the principal, is indeed entitled to disqualify a subcontractor without providing an explanation to the main contractor (p. 655).
- P/114 - An additional page from the IPS construction tender, in which reference is made to contractor profit: "The contractor's profit (in the case of subcontractor's work) will be 12% and will include all of the contractor's expenses, including financing and overhead, and including the subcontractor's expenses..." The witness gave an explanation about the clause. To the question of what degree of intervention the construction officer should have with regard to the percentage of contractor profit that the main contractor receives, he replied that the construction officer is prohibited from intervening in this matter (p. 658).
- The witness is not familiar with cases in which a main contractor transfers a payment check for the subcontractor to the construction officer of the IPS (p. 659). In addition, he does not know of a professional justification for a subcontractor to transfer a payment in cash to the construction officer (p. 660).
Cross-examination
- The witness confirmed that the defendant, in his capacity as a construction officer, did not sign any work on his own and sent the check (p. 672). At the same time, the district has a less professional ability to examine the matter (p. 672). The witness has never audited the district's projects (p. 673). District TAL officers consult with him, but he himself did not check the accounts (p. 673). It is difficult to find a contractor's lie in retrospect, for example regarding the depth of a trench he filled with concrete, but there are technological means that enable a suitable engineer to check whether the project was inflated (p. 674).
- With regard to the confirmation of accounts, it seems that no one can examine the defendant in the district, if he calculated, for example, incorrect multiplications or incorrect clauses (p. 680). The witness confirmed that there are two chains of approvals, at the entrance to the process and at the exit from it after the execution. According to him, the professional authority, even if it examines the defendant's words, cannot employ investigators (p. 681).
Testimony of Mark Alfasi (transcript of October 27, 2022)