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B-159622, SEP. 1, 1966

B-159622 Sep 01, 1966
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INC.: REFERENCE IS MADE TO YOUR PROTEST BY TELEGRAM OF JULY 6. THE PURCHASE DESCRIPTION IN THE IFB STIPULATES THAT THE BOXES ARE TO BE MANUFACTURED IN ACCORDANCE WITH THE GENERAL REQUIREMENTS OF FEDERAL SPECIFICATIONS PPP-B-621A. PREPARATION OF BIDS - (A) BIDDERS ARE EXPECTED TO EXAMINE THE DRAWINGS. FAILURE TO DO SO WILL BE AT THE BIDDER'S RISK. "/D) BIDS WHICH OFFER SUPPLIES OR SERVICES OTHER THAN THOSE SPECIFIED WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE INVITATION FOR BIDS. "2. ANY INFORMATION GIVEN TO A PROSPECTIVE BIDDER CONCERNING AN INVITATION FOR BIDS WILL BE FURNISHED TO ALL PROSPECTIVE BIDDERS. IF SUCH INFORMATION IS NECESSARY TO BIDDERS IN SUBMITTING BIDS ON THE INVITATION OR IF THE LACK OF SUCH INFORMATION WOULD BE PREJUDICIAL TO UNINFORMED BIDDERS.

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B-159622, SEP. 1, 1966

TO JAN PACKAGING, INC.:

REFERENCE IS MADE TO YOUR PROTEST BY TELEGRAM OF JULY 6, 1966, AS SUPPLEMENTED BY YOUR LETTER OF JULY 11, AGAINST AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. 66-262-04-P, ISSUED JUNE 15, 1966, BY THE UNITED STATES INFORMATION AGENCY (USIA).

THE IFB SOLICITED BIDS, ON A TOTAL SMALL BUSINESS SET-ASIDE BASIS, TO SUPPLY THE AGENCY'S REQUIREMENTS FOR NAILED WOOD PACKING BOXES DURING THE PERIOD JULY 1, 1966, THROUGH JUNE 30, 1967. THE PURCHASE DESCRIPTION IN THE IFB STIPULATES THAT THE BOXES ARE TO BE MANUFACTURED IN ACCORDANCE WITH THE GENERAL REQUIREMENTS OF FEDERAL SPECIFICATIONS PPP-B-621A, CLASS 2, TYPE 3, DATED AUGUST 29, 1962, AND AMENDMENTS. ARTICLE I OF THE SPECIFICATIONS, ON PAGE 4 OF THE IFB, INCLUDES THE FOLLOWING LANGUAGE:

"SIDES AND ENDS OF BOXES TO BE IN ONE, TWO OR THREE PIECES TONGUED AND GROOVED; TOPS AND BOTTOMS TO BE IN ONE TO FIVE PIECES, NO PIECE NARROWER THAN THREE INCHES, TONGUED AND GROOVED.'

STANDARD FORM 33-A, BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS (SUPPLY CONTRACT), INCORPORATED IN THE IFB AS INDICATED ON THE FACE SHEET, READS, IN PART, AS FOLLOWS:

"1. PREPARATION OF BIDS - (A) BIDDERS ARE EXPECTED TO EXAMINE THE DRAWINGS, SPECIFICATIONS, SCHEDULE, AND ALL INSTRUCTIONS. FAILURE TO DO SO WILL BE AT THE BIDDER'S RISK.

"/D) BIDS WHICH OFFER SUPPLIES OR SERVICES OTHER THAN THOSE SPECIFIED WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE INVITATION FOR BIDS.

"2. EXPLANATIONS TO BIDDERS - ANY EXPLANATION DESIRED BY A BIDDER REGARDING THE MEANING OR INTERPRETATION OF THE INVITATION FOR BIDS, DRAWINGS, SPECIFICATIONS, ETC., MUST BE REQUESTED IN WRITING AND WITH SUFFICIENT TIME ALLOWED FOR A REPLY TO REACH BIDDERS BEFORE THE SUBMISSION OF THEIR BIDS. ANY INFORMATION GIVEN TO A PROSPECTIVE BIDDER CONCERNING AN INVITATION FOR BIDS WILL BE FURNISHED TO ALL PROSPECTIVE BIDDERS, AS AN AMENDMENT TO THE INVITATION, IF SUCH INFORMATION IS NECESSARY TO BIDDERS IN SUBMITTING BIDS ON THE INVITATION OR IF THE LACK OF SUCH INFORMATION WOULD BE PREJUDICIAL TO UNINFORMED BIDDERS. RECEIPT OF AMENDMENTS BY A BIDDER MUST BE ACKNOWLEDGED ON THE BID OR BY LETTER OR TELEGRAM RECEIVED BEFORE THE TIME SET FOR OPENING OF BIDS. ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF THE CONTRACT WILL NOT BE BINDING.

"8. AWARD OF CONTRACT - (A) THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.'

ON JUNE 29, THE TWO BIDS RECEIVED BY USIA, ONE FROM YOU AND THE OTHER FROM ABBOT AND ABBOT BOX CORPORATION, WERE OPENED AS SCHEDULED. ABBOT AND ABBOT OFFERED A TONGUE AND GROOVE CONSTRUCTED BOX, BUT YOUR BID, DATED JUNE 22, BORE A NOTATION THAT IN LIEU OF TONGUE AND GROOVE YOU OFFERED ONE PIECE BUILT-UP CONSTRUCTION USING CORRUGATED FASTENERS ACROSS BUTTED JOINTS IN ACCORDANCE WITH THE APPLICABLE FEDERAL SPECIFICATION.

YOU STATE THAT PRIOR TO THE TIME FIXED FOR BID OPENING, YOU HAD A TELEPHONE CONVERSATION WITH A MISS WOOD IN THE OFFICE OF THE CONTRACTING OFFICER, AND THAT YOU SPECIFICALLY INQUIRED OF MISS WOOD WHETHER A BID TAKING EXCEPTION TO THE IFB TONGUE AND GROOVE CONSTRUCTION REQUIREMENT WOULD BE CONSIDERED NONRESPONSIVE, AND THAT MISS WOOD REPLIED IN THE NEGATIVE. YOU FURTHER STATE THAT ON THE MORNING OF JULY 6, A MR. POPPEN, ALSO OF THE OFFICE OF THE CONTRACTING OFFICER, TELEPHONED YOU TO INQUIRE WHETHER YOU HAD FORWARDED A SAMPLE BOX TO THE AGENCY'S OFFICE IN BROOKLYN, NEW YORK, AND THAT YOU INFERRED FROM YOUR CONVERSATION WITH MR. POPPEN THAT YOU WOULD NOT RECEIVE THE AWARD UNDER THE IFB. ADDITIONALLY, YOU STATE THAT DURING THE AFTERNOON OF JULY 6 YOU SPOKE TO A MR. FEDELE OF THE AGENCY'S BROOKLYN OFFICE, WHO WAS TO INSPECT YOUR SAMPLE, AND THAT MR. FEDELE ADVISED YOU THAT IN HIS OPINION YOUR BOX WAS EQUAL TO THE TONGUE AND GROOVE CONSTRUCTED BOX, ALTHOUGH THE LATTER WAS MORE WATERPROOF. HOWEVER, YOU ALLEGE, MR. FEDELE CONCEDED THAT NONE OF THE FOUR TYPES OF BOXES COVERED BY THE FEDERAL SPECIFICATIONS (LOCKED CORNER, BUTT END, TONGUE AND GROOVE, AND LINDERMAN JOINT) WOULD BE WATERPROOF WITHOUT A WATERPROOF PAPER LINER.

YOU FURTHER ALLEGE THAT ON JULY 11 YOU AGAIN TALKED TO MR. POPPEN, WHO INFORMED YOU THAT WHILE MR. FEDELE REPORTED YOUR BOX WAS GOOD AND NOTHING COULD BE FOUND WRONG WITH IT, ONE OF THE PACKAGING MEN IN WASHINGTON ADVISED MR. POPPEN THAT THE TONGUE AND GROOVE CONSTRUCTION WAS PREFERRED BECAUSE IT MADE A SLIGHTLY MORE WEATHERTIGHT BOX AND TENDED TO KEEP PILFERAGE DOWN AND THAT MR. POPPEN CONCURRED WITH SUCH VIEW. IN THIS CONNECTION, YOU STATE THAT YOU INFORMED MR. POPPEN THAT NO WOOD BOXES ARE WEATHERTIGHT WITHOUT A WATERPROOF PAPER LINER, AND THAT YOU MADE NO ANSWER TO HIS REASONING REGARDING PILFERAGE.

IN ADDITION TO THE FOREGOING, YOU CONTEND THAT NOWHERE IN THE IFB DOES IT STATE THAT ANY EXCEPTIONS TO THE IFB WOULD MAKE A BID NONRESPONSIVE; THAT THE USE OF BUTTED JOINTS COMPLIES WITH THE FEDERAL SPECIFICATIONS; AND THAT THE ABSENCE OF SPECIFIC WORDS SHOWING THAT THE PROCUREMENT WAS LIMITED TO TONGUE AND GROOVE CONSTRUCTION MISLED YOU TO BELIEVE THAT THE OTHER TYPES OF CONSTRUCTION PERMITTED BY THE FEDERAL SPECIFICATIONS WERE ACCEPTABLE. ACCORDINGLY, YOU REQUEST THAT AS THE LOWEST RESPONSIBLE BIDDER YOU BE ALLOWED TO PERFORM THE CONTRACT IN ACCORDANCE WITH YOUR OFFER.

IN A REPORT FORWARDED BY USIA TO OUR OFFICE, WHICH IS AN OFFICIAL RECORD AND MUST BE ACCEPTED AS CORRECT ABSENT SUFFICIENT EVIDENCE TO OVERCOME THE PRESUMPTION OF ITS CORRECTNESS, THE ADMINISTRATIVE VERSION OF THE VARIOUS CONVERSATIONS WHICH YOU HAD WITH THE THREE AGENCY EMPLOYEES NAMED ABOVE IS SOMEWHAT DIFFERENT FROM YOUR VERSION. MRS. WOOD, THE EMPLOYEE WITH WHOM YOU HAD THE VERBAL PREBID DISCUSSION REGARDING THE ACCEPTANCE OF A BID WHICH WAS NOT BASED ON THE IFB TONGUE AND GROOVE CONSTRUCTION REQUIREMENT, IS REPORTED AS HAVING INFORMED YOU THAT SHE WAS NOT SUFFICIENTLY ACQUAINTED WITH THE MATTER OF THE CONSTRUCTION OF BOXES TO ASCERTAIN WHETHER THE BID WOULD BE RESPONSIVE AND, THEREFORE, YOU SHOULD SUBMIT A BID ON A BOX WHICH YOU COULD SUPPLY, AT WHICH TIME THE DETERMINATION OF ITS RESPONSIVENESS WOULD BE MADE. ON THIS POINT, USIA CALLS ATTENTION TO THE LANGUAGE QUOTED ABOVE FROM PARAGRAPH 2 OF STANDARD FORM 33-A REQUIRING REQUESTS FOR CLARIFICATION OF THE SPECIFICATIONS TO BE IN WRITING, AND ADVISING THAT ORAL EXPLANATIONS OR INSTRUCTIONS WOULD NOT BE BINDING.

REGARDING YOUR STATEMENT THAT THE IFB DOES NOT COVER THE MATTER OF THE TAKING OF ANY EXCEPTIONS TO ITS PROVISIONS, USIA CALLS ATTENTION TO THE LANGUAGE OF PARAGRAPH 1/D), STANDARD FORM 33-A, PLACING BIDDERS ON NOTICE THAT BIDS OFFERING SUPPLIES OR SERVICES OTHER THAN AS SPECIFIED WILL NOT BE CONSIDERED UNLESS OTHERWISE AUTHORIZED BY THE IFB.

CONCERNING THE LANGUAGE OF THE TONGUE AND GROOVE CONSTRUCTION REQUIREMENT, IT IS THE VIEW OF USIA THAT SINCE THE IFB EXPLICITLY DESIGNATED THE REQUIRED TYPE OF CONSTRUCTION, SUCH PROVISION SHOULD NOT MISLEAD BIDDERS TO BELIEVE THAT THEY HAD AN OPTION TO QUOTE ON THE OTHER TYPES OF CONSTRUCTION COVERED BY THE SPECIFICATION.

AS TO THE TELEPHONE CONVERSATIONS OF JULY 6 WHICH YOU HAD WITH MR. POPPEN AND WITH MR. FEDELE, IT IS REPORTED THAT MR. POPPEN INFORMED YOU THAT THE AGENCY CONSIDERED YOUR BID NONRESPONSIVE AND, THEREFORE, NO AWARD COULD BE MADE TO YOU, AND THAT MR. FEDELE INFORMED YOU THAT IN HIS OPINION YOUR BOX IS GOOD BUT IS NOT SUITABLE TO THE AGENCY'S NEEDS.

WITH RESPECT TO YOUR CONTENTION THAT THE BOX YOU OFFER, WITH BUTTED JOINTS, IS EQUAL TO THE TONGUE AND GROOVE CONSTRUCTED BOX, IT IS STATED THAT HAD THE AGENCY, UPON INSPECTION OF YOUR SAMPLE, FOUND THAT IT WOULD BE IN THE GOVERNMENT'S INTEREST TO PURCHASE THAT TYPE OF BOX, NO AWARD WOULD BE MADE UNDER THE IFB; INSTEAD, THE SPECIFICATIONS WOULD BE REVISED TO PROVIDE FOR BUTT AND CONSTRUCTION, AND THE PROCUREMENT WOULD BE READVERTISED ACCORDINGLY. FURTHER, THE AGENCY SUMMARIZES THE REASONS WHY TONGUE AND GROOVE CONSTRUCTION IS CONSIDERED NECESSARY AS FOLLOWS:

"1. ALTHOUGH TONGUE AND GROOVED LUMBER WILL NOT COMPLETELY WATERPROOF A BOX, IT WILL WITHOUT QUESTION PROVIDE A MUCH GREATER PROTECTION FROM RAIN, SNOW, HIGH HUMIDITY, AND OTHER HAZARDS OF SHIPPING THAN BUTT END CONSTRUCTION CAN POSSIBLY AFFORD.

"2. TONGUED AND GROOVED LUMBER PROVIDES GREATER STRENGTH BECAUSE OF THE INTERLOCKING FEATURE THUS AFFORDING GREATER PROTECTION AGAINST DROPPING, BUMPING, ETC.

"3. TONGUED AND GROOVED LUMBER PROVIDES GREATER SECURITY AGAINST PILFERAGE FOR ENCLOSED MATERIALS SINCE CONTENTS CANNOT BE OBSERVED THROUGH CRACKS AND CANNOT BE PRIED OPEN AS READILY AS BUTT END CONSTRUCTION.'

BY WAY OF EXPLANATION, THE AGENCY STATES THAT THE BOXES IN QUESTION WILL BE USED FOR SHIPMENTS TO VARIOUS OVERSEAS POSTS, INCLUDING SAIGON, OKINAWA, MANILA, BANGKOK, AND CEYLON, AND TO VOICE OF AMERICA OVERSEAS RELAY STATIONS AT LIBERIA, TANGIER, RHODES, THESSALONIKI, OKINAWA, THE PHILIPPINES AND HAWAII, WHICH, WITH FEW EXCEPTIONS, WILL BE HANDLED AS ORDINARY SEA CARGO. THE SHIPMENTS WILL CONSIST OF THOUSANDS OF ITEMS REQUIRED TO SUSTAIN ACTIVE MEDIA PROGRAMS OVERSEAS, SUCH AS ALL TYPES OF ELECTRONIC TUBES, ALL SIZES AND TYPES OF UNDEVELOPED FILM, TRANSISTORS, CONDENSERS, TRANSFORMERS AND OTHER ELECTRONIC PARTS AND SUPPLIES FOR USE IN EQUIPMENT RANGING FROM SMALL RADIOS AND TELEVISION EQUIPMENT TO GIANT TRANSMITTING STATIONS, AND DELICATE AND COSTLY MOTION PICTURE CAMERAS, STUDIO RECORDING EQUIPMENT, AND FILM PROCESSERS. FURTHER, THE LONG SEA VOYAGE AND THE HOT AND HUMID NATURE OF MOST OF THE DESTINATIONS NECESSITATE PROTECTION OF THE CARGO, DUE TO ITS DELICATE NATURE, FROM THE EFFECTS OF MOISTURE; THEREFORE, WATERPROOF LINERS WILL BE USED IN THE BOXES. HOWEVER, A BUTT END TYPE BOX WOULD REQUIRE A SEAL TYPE WATERPROOF INNER LINER, WHICH WOULD COST THE GOVERNMENT AN ADDITIONAL AMOUNT RANGING FROM $0.60 TO $0.75 PER BOX, IN ORDER TO PROVIDE PROTECTION EQUAL TO THAT PROVIDED BY THE LINED TONGUE AND GROOVE CONSTRUCTION TYPE BOX, AND WOULD HAVE THE EFFECT OF MAKING THE COST TO THE GOVERNMENT APPROXIMATELY $0.35 A BOX MORE FOR THE PURCHASE AND USE OF YOUR BOX RATHER THAN THE BOX OFFERED BY ABBOT AND ABBOT.

WITH RESPECT TO THE ISSUE OF PILFERAGE, THE AGENCY POINTS OUT THAT THE TONGUE AND GROOVE CONSTRUCTION RESULTS IN A TIGHTER BOX THAN BUTT END CONSTRUCTION, THUS AFFORDING A GREATER DEGREE OF PROTECTION SINCE IT IS RELATIVELY EASY TO REMOVE THE NAILS AND CORRUGATED FASTENERS FROM A BUTT END CONSTRUCTED BOX, TO SLIP BOARDS FROM UNDER THE STEEL BANDING, AND TO REMOVE THE CONTENTS AND REPLACE THE BOARD WITHOUT EVIDENCE OF TAMPERING. CONVERSELY, IT IS STATED THAT IT IS MUCH MORE DIFFICULT TO SLIP A TONGUE AND GROOVE BOARD FROM UNDER STEEL STRAPS AND, IF THE LUMBER HAS NOT BEEN SUBJECT TO SHRINKAGE, IS NEXT TO IMPOSSIBLE.

IT IS THE POSITION OF USIA, THEREFORE, THAT YOUR BID FAILS TO MEET A SPECIFIC REQUIREMENT OF THE IFB; THAT YOUR DEVIATION IS MATERIAL AND CANNOT BE WAIVED; AND THAT THE ACCEPTANCE OF YOUR BID OFFERING A BOX NOT IN ACCORD WITH THE SPECIFICATIONS AND OF A CHEAPER TYPE OF CONSTRUCTION WOULD BE PREJUDICIAL TO OTHER BIDDERS. WE HAVE BEEN INFORMALLY ADVISED, HOWEVER, THAT AWARD IS BEING WITHHELD PENDING OUR DECISION ON YOUR PROTEST.

THE DRAFTING OF SPECIFICATIONS TO REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING AGENCY CONCERNED. THERE IS NO REQUIREMENT, HOWEVER, THAT THE GOVERNMENT PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED, NOR NEED THE GOVERNMENT BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEEDS. 36 COMP. GEN. 251, 252. CONSISTENT WITH SUCH RULES, FEDERAL PROCUREMENT REGULATIONS (FPR) 1 1.305-3 PERMITS DEVIATIONS FROM THE FEDERAL SPECIFICATIONS WHEN THE ESSENTIAL NEEDS OF AN AGENCY ARE NOT ADEQUATELY COVERED THEREBY AND THE PROPOSED PURCHASE IS NOT EXEMPTED BY FPR 1-1.305-2 FROM THE MANDATORY USE OF THE FEDERAL SPECIFICATIONS. THE EXERCISE OF SUCH DEVIATION AUTHORITY IS SUBJECT TO THE CONDITION THAT THE REQUIREMENTS OF EXISTING FEDERAL SPECIFICATIONS BE USED TO THE MAXIMUM EXTENT PRACTICABLE AND TO THE ESTABLISHMENT OF PROCEDURES TO ASSURE COMPETENT REVIEW OF JUSTIFICATIONS FOR DEVIATIONS.

IN THE INSTANT CASE, WHILE IT IS TRUE, AS USIA STATES, THAT THE TONGUE AND GROOVE CONSTRUCTION METHOD IS INCLUDED IN THE APPLICABLE FEDERAL SPECIFICATION, NEVERTHELESS, THE IFB PROVISION RESTRICTING BIDDERS TO THE USE OF SUCH METHOD OF CONSTRUCTION TO THE EXCLUSION OF THE OTHER THREE TYPES OF CONSTRUCTION PERMITTED BY THE FEDERAL SPECIFICATION CONSTITUTES, IN OUR VIEW, A DEVIATION OR MODIFICATION OF THE FEDERAL SPECIFICATION WITHIN THE PURVIEW OF FPR 1-1.305-3. THE QUESTION FOR DETERMINATION, THEREFORE, IS WHETHER SUCH DEVIATION HAS BEEN JUSTIFIED AS CONTEMPLATED BY THE FPR. THE RECORD SHOWS THAT NOTWITHSTANDING THAT BIDDERS WERE CAUTIONED BY THE TERMS OF THE IFB TO READ THE BIDDING INSTRUCTIONS CAREFULLY AND TO PRESENT IN WRITING ANY REQUESTS FOR CLARIFICATION, YOU ELECTED TO SUBMIT A BID AFTER ONLY A VERBAL DISCUSSION OF THE IFB PROVISION WHICH YOU NOW CONTEND IS MISLEADING. THE RECORD FURTHER SHOWS, HOWEVER, THAT THE PROVISION YOU QUESTIONED WAS INCORPORATED IN THE IFB WITH THE APPROVAL OF MR. POPPEN AFTER CONSIDERATION BY THE AGENCY'S PACKAGING EMPLOYEES OF THE ADVANTAGES OF THE TONGUE AND GROOVE TYPE CONSTRUCTION IN THE LIGHT OF THE AGENCY'S NEEDS AND A DETERMINATION THAT SUCH TYPE CONSTRUCTION WAS NECESSARY SETTING FORTH A JUSTIFICATION THEREOF WHICH WE DO NOT FIND UNREASONABLE. IN THE CIRCUMSTANCES, IT IS OUR VIEW THAT THERE HAS BEEN COMPLIANCE WITH FPR 1-1.305-3 AND WE CONCUR WITH THE VIEW OF USIA THAT YOUR BID OFFERING A TYPE OF CONSTRUCTION OTHER THAN THAT REQUIRED BY THE IFB IS NONRESPONSIVE. THEREFORE, THE REJECTION OF YOUR BID IS REQUIRED UNDER PARAGRAPHS 1/D) AND 8/A) OF STANDARD FORM 33-A, THE TERMS OF WHICH ARE CONSISTENT WITH THE PROVISIONS OF THE PROCUREMENT STATUTE (41 U.S.C. 253/B) ( AND THE PROCUREMENT REGULATIONS (FPR 1 2.407.1). FURTHER, WE FIND NO LEGAL BASIS FOR OBJECTION TO AWARD TO THE OTHER BIDDER, WHO PRESUMABLY HAS BEEN FOUND TO BE RESPONSIBLE, AS WELL AS RESPONSIVE.

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