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Tri-State Electric, Inc. v. Western Surety Co.

United States District Court, D. Idaho

January 11, 2017

TRI-STATE ELECTRIC, INC., an Idaho corporation, and UNITED STATES OF AMERICA for the use and benefit of APEX ENTERPRISES, INC., an Idaho corporation, Plaintiffs,
v.
WESTERN SURETY COMPANY, a South Dakota corporation, and SYGNOS, INC., a California corporation, Defendant. SYGNOS, INC., an Arizona corporation, Counterclaimant,
v.
APEX ENTERPRISES, INC., an Idaho corporation, Counterdefendant.

          MEMORANDUM DECISION AND ORDER

          Honorable Edward J. Lodge, United States District Judge

         The Court has before it Defendants' Motion for Partial Summary Judgment Regarding Damages Claims of Apex Enterprises, Inc. (“AEI”) (Dkt. 41), Defendants' Motion for Partial Summary Judgment Regarding Damages Claims of Tri-State Electric, Inc. (Dkt. 42), AEI's Motion for Partial Summary Judgment (Dkt. 43), and AEI's Motion to Strike Declaration of R. Troy Fichtelman (Dkt. 53). The parties have submitted their briefing on the motions and the matter is now ripe for the Court's review.

         Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the motions shall be decided on the record before this Court without oral argument. D. Idaho Loc. Civ. R. 7.1

         BACKGROUND[1]

         This case involves a breach of contract and Miller Act dispute over an electrical upgrade project at the VA Medical Center in Boise, Idaho. In 2010, the United States Department of Veterans Affairs (“VA”) awarded a contract to Sygnos, Inc. (“Sygnos”) to improve the electrical systems at the Boise VA Medical Campus. Sygnos and AEI entered into a subcontract for the replacement of electrical switchgear and related improvements at the site (“Phase III Project”). In turn, AEI entered into a subcontract with Tri-State Electric, Inc. (“Tri-State”) for a substantial portion of the electrical work on the Phase III Project. Western Surety Company (“Western Surety”) is the surety for Sygnos, and it issued the required Payment Bond for the Phase III Project.[2]

         In addition to the Phase III Project, Sygnos had also contracted with AEI (who had, in turn, subcontracted with Tri-State) on another project for other aspects of upgrading the electrical systems on the Boise VA Medical Campus. The contract for the other project, and the work associated therewith, preceded the Phase III Project and is commonly referred to as the “Phase I Project.” Due to disputes that arose during the course of the Phase I Project, separate litigation, 1:13-cv-00209-DOC, was filed by AEI against Sygnos and its surety on the Phase I Project during the time Sygnos, AEI and Tri-State were still actively working to complete the Phase III Project.[3]

         Sygnos's Prime Contract with the VA specified that the Phase III Project was to be completed within 240 days from the VA's issuance of a Notice to Proceed. The subcontract between Sygnos and AEI expressly incorporated the terms of the Sygnos/VA Prime Contract. The VA provided the Notice to Proceed on May 9, 2011. Following issuance of the Notice to Proceed, the parties immediately began experiencing significant delays by the VA.[4] Such delays included the VA failing to timely approve submittals, delays due to the lack of necessary emergency power for the VA Medical Campus, and delays associated with design deficiencies in the original designs for the project.[5] Although the Phase III Project originally had a completion target date of approximately January 6, 2012, the Phase III Project did not reach substantial completion until November 27, 2013.

         Over the course of the delay period, AEI retained the services of Excell Consulting International, Inc. (“Excell”). AEI claims it hired Excell to assist Sygnos in communicating with and demonstrating to the VA that Sygnos and AEI were entitled to additional compensation due to VA-caused delays to the Phase III Project. (Dkt. 43-1, pp. 13-14.) AEI maintains it incurred the expense of hiring Excell because Sygnos agreed that AEI was entitled to payment. (Id.) Sygnos counters AEI hired Excell solely to assist it with preparing a claim for the damages AEI purportedly suffered as a result of the VA-caused delays on the Phase III Project. Sygnos suggests AEI is not entitled to compensation for Excell's services because, inter alia, Excell was solely engaged by AEI and performed all work for AEI. (Dkt. 41-2, ¶ 16.)

         Due to the substantial delay on the Phase III Project and the litigation regarding the Phase I Project, the relationship between the parties became acrimonious. Sygnos claims AEI failed to timely procure switchgear pursuant to the VA's and Sygnos's direction, and that Sygnos incurred additional unanticipated costs as a result in order to ensure the Phase III Project was properly managed to completion. (Dkt. 41-2, ¶ 18.) Sygnos also suggests AEI refused to complete additional work on the Phase III Project demanded by the VA in November 2013, and that Sygnos was forced to contract with Mountain West Power to complete the Phase III Project as a result of AEI's default. (Id.) By contrast, AEI maintains Sygnos demanded that it perform work beyond the scope of the subcontract, was late on payments, and refused to guarantee payment for additional work unreasonably required by the VA at the project's completion. (Dkt. 43-2, ¶¶ 17, 18.) AEI suggests Sygnos ultimately terminated the subcontract because AEI refused to perform the disputed work and “despite the fact that all work within AEI's Scope of Work had been completed.” (Dkt. 43-2, ¶ 18.)

         After the Phase III Project was finished, Sygnos began compiling evidence to support the damages it had incurred as a result of the VA's delay in preparation for submitting a Request for Equitable Adjustment (“REA”) to the VA. Sygnos asked AEI to compile information to support its delay damages. In May of 2014, Sygnos submitted REA No. 2 to the VA to recover costs associated with the substantial delay.[6] Sygnos contends that it attempted to obtain AEI's portion of the Phase III Project delay damages in submitting REA No. 2, but that AEI refused to provide essential documentation necessary to support its claim.[7] (Dkt. 41-1, p. 3.)

         Although AEI submitted a claim for $666, 400 in costs purportedly attributable to the VA's delays, Sygnos suggests it repeatedly advised AEI that it had not provided adequate support for this amount. (Dkt. 44-1, ¶¶ 21-25.) When Sygnos certified REA No. 2 in May 2014, it noted it could not verify AEI's costs, stating:

The costs submitted herein are based on actual costs incurred by Sygnos for the additional work and delayed contract completion. The costs presented by AEI were developed independently by AEI. Due to the adverse actions of the VA, AEI has initiated legal proceedings against Sygnos, Inc. for unpaid sums that AEI has presented in it's [sic] REA presented at TAB 20. Due to this current adversarial relationship, Sygnos, Inc. has been unable to adequately review the cost and pricing data provide [sic] by AEI.

(Dkt. 43-4, p. 60.)

         The May 2014 certification concluded:

This is to certify that, to the best of my knowledge and belief, the cost or pricing data (as defined in section 2.101 of the Federal Acquisition Regulation (FAR)) submitted, either actually or by specific identification in writing, to the Contracting Officer or to the Contracting Officer's representative in support of REA # 2 are accurate, complete and current as of March 23, 2014; except for those costs submitted independently herein by AEI.

(Id., p. 62.)

         When the VA failed to timely respond to the May 2014 certification, Sygnos converted REA No. 2 to a claim under the Contract Disputes Act, 41 U.S.C. § 7101, by letter dated July 23, 2014. (Dkt. 43-6, pp. 10-11.) The July 23, 2014 letter contained the following certification by Sygnos's President:

I certify that the claim is made in good faithy [sic]: that the supporting data as [sic] accurate to the best of my knowledge and belief; that the amount requested of $1, 243, 217 accurately reflects the contract adjustment for which the contractor believes the Government is liable; and that I am duly authorized to certify the claim on behalf of the contractor.

(Dkt. 43-6, p. 12.)

         On January 13 and 14, 2015, Sygnos met with representatives from the VA to negotiate the claims of Sygnos and its subcontractors. Following the negotiations, the VA agreed to pay only a portion of the damages claimed by Sygnos, AEI and Tri-State. Specifically, the VA agreed to pay Sygnos a total of $645, 000.00. The VA estimated $304, 641.01 of the total award of $645, 000.00 in subcontractor costs. (Dkt. 41-7, pp. 13-14.)

         On summary judgment, AEI suggests Sygnos should be judicially estopped from asserting that AEI is not entitled to at least the $304, 641.01 of delay damages awarded by the VA to Sygnos for subcontractor costs. AEI also seeks unpaid sums Defendants allegedly owe under the AEI subcontract. Defendants do not dispute that AEI is entitled to delay damages, but suggest genuine issues of material fact preclude summary judgment on the extent of damages to which AEI is entitled. Defendants also seek summary judgment finding AEI is not entitled to recover fees AEI paid to Excell, an award of partial summary judgment capping AEI's potential damages to the amount awarded by the VA, and judgment as a matter of law precluding any determination of liability for Defendants for any damages asserted by Tri-State.

         STANDARD OF REVIEW

         Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides that judgment shall be granted if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). According to Rule 56, an issue must be both “material” and “genuine” to preclude entry of summary judgment. An issue is “material” if it affects the outcome of the litigation. Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975). That is, a material fact is one that is relevant to an element of a claim or defense which might affect the outcome of the suit. The materiality of a fact is thus determined by the substantive law governing the claim or defense. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.

         On the other hand, an issue is “genuine” when there is “sufficient evidence supporting the claimed factual dispute… to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Hahn, 523 F.2d at 464 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). Because factual disputes are to be resolved at trial, in ruling on summary judgment motions, the court does not resolve conflicting evidence with respect to disputed material facts, nor does it make credibility determinations. T.W. Elec. Serv., Inc., 809 F.2d at 630. Moreover, all inferences must be drawn in the light most favorable to the nonmoving party. Id. at 631.

         Where, as here, the parties both move for summary judgment, the court will consider each motion on its own merits. Fair Housing Council of Riverside Cnty. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). In ruling on cross-motions, the court will consider the entirety of each party's evidentiary submission, regardless of which motion (or opposition) the evidence accompanied. Id. at 1136-37.

         ANALYSIS

         I. AEI'S Motion for Partial Summary Judgment (Dkt. 43)

         AEI seeks entry of partial summary judgment on its breach of contract and unjust enrichment claims against Sygnos, and Miller Act claim against Western Surety. AEI also moves for dismissal of Sygnos's counterclaim for breach of the covenant of good faith and fair dealing.

         A. Breach of Contract and Miller Act Claims

         AEI asks that the Court award summary judgment on its breach of contract claim against Sygnos, and its Miller Act claim against Western Surety, in the amount of $83, 292.24. AEI also seeks a determination that Sygnos is obligated to pay AEI at least $304, 641.01-the amount the VA paid Sygnos to compensate its subcontractors-for the delay and disruption damages incurred by AEI. AEI claims it is entitled to summary judgment finding it may recover at least $304, 641.01 against the Payment Bond for delay and disruption damages incurred by AEI and Tri-State.

         The Miller Act, 40 U.S.C. §§ 3131-3134, governs surety bonds on federal construction projects that cost more than $100, 000. Under the Miller Act, a contractor must post both a performance bond and a payment bond for a project. 40 U.S.C. § 3131. Every person “that has furnished labor or material in carrying out work” on a project covered by the Miller Act, who “has not been paid in full within 90 days after the day on which the person did or performed the last of the labor” may bring suit on the payment bond “for the amount unpaid at the time the civil action is brought and may prosecute the action to final execution and judgment for the amount due.” 40 U.S.C. § 3133(b)(1).

         State law controls the interpretation of Miller Act subcontracts to which the United States is not a party. U.S. for Use and Benefit of Reed v. Callahan, 884 F.2d 1180, 1185 (9th Cir. 1989). Here, the contract at issue is the subcontract between AEI and Sygnos. Because the VA is not a party to that subcontract, the law of the forum state of Idaho governs the interpretation of the subcontract under AEI's Miller Act claim. Id.

         Under Idaho law, the elements of a breach of contract are: “(a) the existence of the contract, (b) the breach of the contract, (c) the breach caused damages, and (d) the amount of those damages.” Edged in Stone, Inc. v. Nw. Power Sys., LLC, 321 P.3d 726, 730 (Idaho 2014) (citing Mosell Equities, LLC v. Berryhill & Co., Inc., 297 P.3d 232, 241 (Idaho 2013)).

         Defendants do not dispute that Sygnos and AEI had a valid contract whereby AEI agreed to provide certain labor, materials and services to Sygnos in connection with the Phase III Project in exchange for payment. (Dkt. 43-2, ¶ 2; Dkt. 41-2, ¶ 5.) Defendants also admit that the Phase III Project was delayed in part by the VA, and that AEI suffered damages as a result of the VA's delays. (Dkt. 44, pp. 3-4.) However, Defendants dispute the amount of AEI's damages and the compensability of certain of those damages due to AEI's alleged breach of the subcontract. (Dkt. 44, p. 6.) Thus, the second and fourth elements of AEI's breach of contract claim are at issue on summary judgment.

         1. Breach

         AEI suggests it is entitled to $83, 292.24 as the balance due and owing on its subcontract with Sygnos because “AEI completed its obligations under the Subcontract on or before November 27, 2013” and “Sygnos has failed and refused to pay AEI the $83, 292.24 balance of the Subcontract price.” (Dkt. 43-1, p. 5.) Sygnos counters AEI defaulted on its obligations under the subcontract in several respects, including by failing to timely order the switchgear necessary for completion of the Phase III Project, by refusing to complete disputed punch list items required by the VA to finish the project, and by failing to cooperate and provide Sygnos with requested supplemental information relating to REA No. 2.

         With respect to its purported failure to timely order switchgear, AEI argues: “The switchgear was ultimately delivered on or about July 8, 2013 and thereafter work was performed to substantially complete the Project by October 7, 2013.” (Dkt. 43-2, ¶ 14.) In support of this contention, AEI cites the declaration of Dan Sweig, AEI's President, and an e-mail from Sygnos's project superintendent dated October 7, 2013 stating, “Sygnos, Inc., has reached a point of substantial completion of performance for the ‘Electrical Corrections of Phase 3' contract. We formally request that the Government schedule a final walk through for generation of the final punch list as soon as possible.” (Dkt. 43-7, ¶ 25; Dkt. 43-8, Exhibit 9.)

         Sygnos counters that although the switchgear was delivered by July 8, 2013, AEI significantly delayed the Phase III Project by failing to order and deliver the switchgear until that date. Specifically, the VA issued Modification No. 5 authorizing funding for, and providing instructions to, Sygnos to order the switchgear necessary for the completion of the Phase III Project on September 27, 2012. (Dkt. 44-1, ¶ 2.) On January 14, 2013, the VA issued a Show Cause Notice, asserting Sygnos was not “properly discharging [its] duties in accordance with the signed contract” because it “had not ordered the required switchgear package.” (Id., ¶ 3.) On February 20, 2013, Sygnos sent a letter to AEI directing AEI and/or its subcontractors to immediately order the switchgear equipment. (Id., ¶ 4.) Sygnos stated the switchgear must be delivered no later than April 30, 2013. (Id.) Although AEI immediately responded that the switchgear had been ordered, Sygnos learned nearly three months later that AEI still had not ordered the switchgear. (Id., ¶¶ 4-12.) On May 16, 2013, Sygnos delivered AEI a letter reminding it of its contractual obligation to comply with the project schedule and to manage its subcontracts and suppliers accordingly. (Id., ¶ 12.) On May 17, 2013, contrary to its prior representations that it had already ordered the switchgear for the Phase III Project as of February 20, 2013, AEI delivered a letter to Sygnos demanding prepayment for the switchgear and indicating, the “gear order will not be shipped until funds are in our account.” (Id., ¶ 13.) Sygnos argues neither Sygnos, nor, in turn, AEI, had any right under their respective contracts to demand pre-payment. (Id., ¶ 14.) Under the applicable regulations, payment could only be demanded upon completion of work.[8]

         The parties agree AEI delivered the switchgear on July 8, 2013. (Dkt. 43-2, ¶ 14; Dkt. 44-1, ¶ 16.) Sygnos maintains this delivery was substantially delayed, and that it incurred additional unanticipated costs to defend against the VA's threat of termination and to ensure that the Phase III Project was properly managed to its completion. (Dkt. 44-1, ¶ 19.) Sygnos sent notice of these additional costs to AEI on December 10, 2013. (Id.) Sygnos suggests the additional costs it incurred as a result of AEI's delay in ordering the switchgear exceed the $83, 292.24 AEI claims is due and owing under the subcontract. (Id.)

         In addition, Sygnos notes the VA completed its walkthrough of the Phase III Project on October 17, 2013, but required Sygnos to complete additional work to finish the project (“punch list items”). (Id., ¶ 17.) Although it appears both AEI and Sygnos disputed whether the punch list items were within the scope of work of the Prime Contract, Sygnos chose to complete the punch list items and submit a REA for the additional work. (Dkt. 43-6, pp. 3-5; Dkt. 43-4, pp. 17-18.) Sygnos asked AEI to complete the disputed punch list items as soon as possible. (Dkt. 43-4, p. 64.) AEI responded that it would not complete the punch list items unless it first received immediate payment for August and September, 2013, and would only complete such work if Sygnos would guarantee payment to AEI no later than 10 days after completion of the work. (Id.) AEI also demanded, “[p]ayment to AEI is not contingent upon Sygnos receiving payment from the government.” (Id.)

         As Sygnos notes, requiring Sygnos to guarantee payment to AEI for the punch list items irrespective of whether Sygnos received payment for such work from the VA was not required under the subcontract. Indeed, the subcontract specifically provided: “It is agreed by [Sygnos] and [AEI] that payment from [the VA] and receipt thereof is a condition precedent to any obligation of payment by [Sygnos] to [AEI]. [Sygnos] shall have no obligation to make payments to [AEI] until payment is received from [the VA].” (1:14-cv-00272-EJL-REB, Dkt. 5, p. 15.)

         Further, Sygnos was required under the Federal Acquisition Regulations (“FAR”) to complete the Phase III Project pending final resolution of any REA. FAR 52.233-1(i) (stating a contractor “shall proceed diligently with the performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Contracting Officer.”) Sygnos maintains that due to AEI's refusal to complete the punch list items, it was forced to terminate AEI's subcontract and hire Mountain West Power to complete the Phase III Project. (Dkt. 44-3, ¶ 18.)

         Finally, Sygnos suggests AEI breached the subcontract by failing and refusing to cooperate and provide Sygnos with requested supplemental information relating the REA No. 2. Sygnos provides evidence of its repeated requests to AEI to submit support for AEI's damages claim of $666, 400. (Dkt. 44-1, ¶¶ 20-29.)

         As a result of AEI's purported failure to submit adequate documentation in support of its delay damages, Sygnos excluded AEI's costs from its May 2014 certification of REA No. 2 to the VA. (Dkt. 43-4, p. 62, stating “the cost or pricing data… are accurate, complete and current as of March 23, 2014; except for those costs submitted independently herein by AEI.”).

         Idaho law recognizes that where a party's breach of contract is material, the other party's performance is legally excused. Melaleuca, Inc. v. Foeller, 318 P.3d 910, 914 (Idaho 2014). As such, “a party sued for damages may defend on the grounds that its performance was excused by the other party's material breach.” Id. “A substantial or material breach of contract is one which touches the fundamental purpose of the contract and defeats the object of the parties in entering into the contract.” Ervin Constr. Co. v. Van Orden, 874 P.2d 506, 510 (Idaho 1993). Whether a breach of contract is material is a factual question, as is whether a subcontractor substantially performed a contract. Id. at 513. Because Defendants have set forth facts suggesting AEI breached the subcontract, thereby excusing Defendants' liability for the balance of the subcontract, summary judgment on the breach element of AEI's Motion for Partial Summary Judgment is denied.

         2. Judicial Estoppel

         Rather than addressing Sygnos's claims regarding AEI's alleged breaches of the subcontract, AEI instead focuses its argument on the theory that Sygnos should be judicially estopped from claiming AEI is responsible for any of the delays associated with the Phase III Project because, in its certified claim to the VA, Sygnos “unequivocally stated that only one party was responsible for the delays on the Project: The Department of Veterans Affairs. Sygnos did not assert, intimate, or even hint that anyone other than the Department of Veterans Affairs was responsible for ‘all' of the delays on the Project.” (Dkt. 52, p. 2) (emphasis in original). Further, AEI notes Sygnos submitted a certified claim to the VA for damages incurred by Sygnos, AEI and Tri-State. (Dkt. 43-2, ¶¶ 23, 25.) The VA settled this claim with Sygnos for $645, 000. (Id., ¶¶ 26-27.) E-mail documentation produced by Sygnos indicates that, following settlement negotiations between the VA and Sygnos, the VA confirmed the amount allocated for AEI and its subcontractor was $304, 641.01. (Dkt. 41-7, Ex. C, p. 13.) As such, AEI claims “judicial estoppel precludes Sygnos from asserting that AEI is not entitled to delay damages incurred by AEI and its subcontractor. Likewise, judicial estoppel precludes Sygnos from arguing that it is owed less than $304, 641.01 for delay costs.” (Dkt. 43-1, pp. 5-6.)

         Judicial estoppel is an equitable doctrine that “generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (citations omitted). Federal law “governs the application of judicial estoppel in federal court.” Rissetto v. Plumbers and Steamfitters Local 343, 94 F.3d 597, 603 (9th Cir. 1996). While termed “judicial, ” the doctrine applies to positions taken in both judicial and quasi-judicial proceedings. Milton H. Green Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 996 (9th Cir. 2012). In addition, judicial estoppel may be applied “to positions taken in the same action or in different actions.” Samson v. NAMA Holdings LLC, 637 F.3d 915, 935 (9th Cir. 2011) (citation omitted).

         Although, in New Hampshire, 532 U.S. at 751, the Supreme Court instructed there are no “inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel, ” the Ninth Circuit has used a three-part test to determine whether application of judicial estoppel is warranted in a given case:

In determining whether to apply the doctrine, we typically consider (1) whether a party's later position is ‘clearly inconsistent' with its original position, (2) whether the party has successfully persuaded the court of an earlier position, and (3) whether allowing the inconsistent position would allow the party to ‘derive an unfair advantage or impose an unfair detriment on the opposing party.'

In re Hoopai, 581 F.3d 1090, 1097 (9th Cir. 2009) (citations omitted).

         Here, it is not evident Sygnos's later position is “clearly inconsistent” with its earlier position. First, as previously noted, Sygnos's certification of REA No. 2 explicitly stated that Sygnos could not and did not certify the costs independently submitted by AEI. (Dkt. 43-4, p. 60.) In its May 2014 certification, Sygnos maintained the costs submitted were, “to the best of [its] knowledge and belief… accurate, complete and current as of March 23, 2014; except for those costs submitted independently herein by AEI.” (Id., p. 62) (emphasis added).

         Regardless, AEI argues Sygnos did certify AEI and Tri-State's costs in its July 23, 2014 letter converting the May 4, 2014 certified claim into a Claim under the Contract Disputes Act (CDA). (Dkt. 52, p. 4) (citing Dkt. 43-6, pp. 10-14.)

         AEI suggests Sygnos's president, Pat Sheely, did not qualify its certified claim when he stated in his July 23, 2014 letter:

I certify that the claim is made in good faithy; [sic] that the supporting data as [sic] accurate to the best of my knowledge and belief; that the amount requested of $1, 243, 217 accurately reflects the contract adjustment for which the contractor believes the Government is liable; and that I ...

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