Himachal Pradesh High Court
Signatory Sh. Deepanshu Gautam vs Cochin on 5 May, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 5th DAY OF MAY, 2022
BEFORE
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE SANDEEP SHARMA
Between:
r to
CIVIL WRIT PETITION NO. 7747 OF 2021
M/S SHRI SHYAM CONSTRUCTION
COMPANY, HOUSE NO. 105,
CHIRANJEEV COLONY, BTM ROAD,
BHIWANI, HARYANA IN JOINT
VENTURE WITH M/S AGR ENGINEERS,
VILLAGE & POST OFFICE
CHOBIN, TEHSIL BAIJNATH, DISTRICT
KANGRA, HIMACHAL PRADESH
AND M/S DEEPANSHU GAUTAM
GOVERNMENT CONTRACTOR,
VILLAGE & POST OFFICE MAJHERNA,
TEHSIL BAIJNATH, DISTRICT
KANGRA, HIMACHAL PRADESH
THROUGH ITS AUTHORIZED
SIGNATORY SH. DEEPANSHU GAUTAM,
S/O SH. ANIL GAUTAM, AGED 27
YEARS, R/O VILLAGE & POST OFFICE
MAJHERNA, TEHSIL BAIJNATH,
DISTRICT KANGRA, HIMACHAL
PRADESH.
....PETITIONER
::: Downloaded on - 10/05/2022 20:04:32 :::CIS
2
(MR. SHUBHAM SOOD,
.
ADVOCATE)
AND
1. THE HIMACHAL PRADESH STATE
ELECTRICITY BOARD LIMITED
THROUGH ITS EXECUTIVE
DIRECTOR (PERSONNEL), VIDYUT
BHAWAN, KUMAR HOUSE, SHIMLA.
171004.
2. THE CHIEF ENGINEER
(OPERATION), NORTH, HPSEBL
DHARAMSHALA, DISTRICT KANGRA,
HIMACHAL PRADESH
....RESPONDENTS
(MR. TARA SINGH CHAUHAN,
ADVOCATE)
Whether approved for reporting?. Yes
This petition coming on for hearing this day, Hon'ble Mr. Justice Sandeep
Sharma, passed the following:
ORDER
Being aggrieved and dissatisfied with the decision of respondent-department as contained in Annexure P-8, available at page 113 of the paper book, whereby techno-commercial bid submitted by the joint venture found by the M/s Shri Shyam Construction Company with M/s AGR Engineers and M/s Deepanshu Gautam, came to be rejected on the ground that bid capacity of the lead partner and credit facility of one of ::: Downloaded on - 10/05/2022 20:04:32 :::CIS 3 the partners has not been attached, petitioner has approached this Court .
in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for following main reliefs:
i) That the writ in the nature of Certiorari or any other appropriate writ order or directions may kindly be issued for quashing and setting aside the impugned Summary dated 02.12.2021 contained in Annexure P-8. Any further action taken after the rejection of the bid of the Petitioner Joint Venture may also be quashed and set aside.
ii) That a writ in the nature of Mandamus or any other appropriate writ order or directions may kindly be issued directing the Respondents to treat the techno commercial bid as qualified and further consider the Petitioner as qualified for the financial bid.
iii) That a writ in the nature of Mandamus or any other appropriate writ order or directions may kindly be issued directing the Respondents to consider the bid of the Petitioner for awarding the work as prescribed in the tender document, being the lowest bidder."
2. For having bird's eye view, certain undisputed facts, which may be relevant for the adjudication of the case are that Himachal Pradesh State Electricity Board Limited, published an advertisement in the lead national Newspaper issuing notice inviting tender for execution of the following four works ::: Downloaded on - 10/05/2022 20:04:32 :::CIS 4 Sr. No. Tender No. Name of work .
1. CEON-Dep-05/2021-22 Tender for providing SOP to LWSS Chadhiar Khas and multi Villages for Baijnath, Lambagaon and Panchrukhi Block under Baijnath and Jaisinghpur constituency in Distt. Kangra (HP) (under Jal Jeevan Mission) at Khalta under ESD, HPSEBL Jaisinghpur.
2.
r to
CEON-51-06/2021-22 Tender for C/O 33/11 KV 1x3.15 MVA
Sub-Station at Darini
associated 33 KV & 11 KV HT Lines
alongwith
under ED Shahpur.
3. CEON-51-07/2021-22 Tender for Augmentation of 3x5 MVA
to 2x10 MVA 33/11 KV Sub-Station at
Sidhupr under ED HPSEBL,
Dharamshala.
4. CEON-51-08/2021-22 Tender for C/O 33/11 KV 1 x3.15
MVA Sub-Station Sohari under ED
Amb.
3. Perusal of the aforesaid document reveals that department concerned invited online tender for the works detailed herein above on the prescribed format. Petitioner-firm participated in three tenders detailed at ::: Downloaded on - 10/05/2022 20:04:32 :::CIS 5 Sr. No. 1 to 3. As per notice inviting ender, last date of the receipt of the .
bid was 23.11.2021, and date of opening of the techno-commercial bid was 24.11.2021. Vide order dated 22.11.2021 (Annexure RA-3), Junior Engineer Operation (North) Himachal Pradesh State Electricity Board Limited, Dharamshala, constituted a committee headed by the Chief Engineer Operation (North) Dharamshala, for opening and evaluation of the techno-commercial bids of the participating firms. Though petitioner firm had participated and submitted the tender/bids for three works out of four tender works, but in the case at hand, dispute has been only raised with regard to following tender:
2. CEON-51-06/2021-22 Tender for C/O 33/11 KV 1x3.15 MVA Sub-Station at Darini alongwith associated 33 KV & 11 KV HT Lines under ED Shahpur.
4. Committee after having perused the commercial bids by participating firms prepared the comparative statements of all the participating firms as is evident from Annexure RA-4. Since lead partner of the petitioner-joint venture i.e. Shyam Construction, failed to attach/annexe the details of works executed in the last seven years and also not furnished the list of ongoing uncompleted works and list of ongoing participated tenders alongwith the estimated costs/value duly certified by a ::: Downloaded on - 10/05/2022 20:04:32 :::CIS 6 Chartered Accountant, techno-commercial bid submitted on behalf of the .
joint venture lead partner of which was M/s Shyam Constructions, came to be rejected for the reasons as detailed in summery contained at Annexure P-8, relevant extract whereof is available at page 113, which reads as under:
"After evaluation of techno-commercial bid of above firms, M/s Deepanshu Gautam govt. Contractor, vpo majherna teh- Baijnath distt-Kangra with joint venture mode with M/s AGR Engineers, Chobin, Baijnath, Kangra (HP) & M/s Shri Shyam Construction Company, H. NO 105, Chiranjeev Colony, Bhiwani, Haryana has been found disqualified as BID capacity of Lead Partner and the credit facility of one partner has not been attached. Also credit facility of third partner namely M/s Deepanshu Gautam govt. Contractor, vpo Majherna teh-Baijnath distt-Kangra is not a credit facility, but the Bank is ready to Finance upto a limit amounting to Rs. 1 Cr. Only, that cannot be considered as CC."
In the aforesaid background, the petitioner-joint venture has approached this court in the instant proceedings, praying therein for the reliefs as have been reproduced herein above.
5. We have heard the learned counsel for the parties and gone through the records.
6. Precise grouse of the petitioner as is highlighted in the petition and as has been further canvassed by Mr. Shubham Sood, learned counsel ::: Downloaded on - 10/05/2022 20:04:32 :::CIS 7 for the petitioner is that ground taken for the rejection of the bid of the .
petitioner-joint venture is wholly unsustainable. It has been claimed on behalf of the petitioner-joint venture that lead partner of the petitioner-joint venture has carried out all the works as would be necessary for the participation in the bidding process. While making this Court to peruse the various provisions of the Standard Bid Document as contained in Annexure P-4, especially clause-IX, Mr. Shubham Sood, argued that each partner of the joint venture was not required to meet the minimum criteria listed in the qualification requirement for the bidder, rather each of its partner or combination of the partners must meet the minimum criteria listed in the Qualification Requirement for the Bidder for an individual bidder for a component of the contract they are designated to perform. He argued that documents available on record clearly reveal that petitioner-joint venture satisfies the minimum criteria for participating in the bidding process and as such, decision of respondents in rejecting the techno-commercial bid is not sustainable in the eye of law. He argued that respondent No. 2 vide its summery dated 2.12.2021 (Annexure P-8) wrongly rejected the bid of the petitioner on the ground that lead partner of the joint venture has not constructed any new 33/11 kV sub-stations, but has only worked as petty contractor of erection work. He argued that similarly, committee ::: Downloaded on - 10/05/2022 20:04:32 :::CIS 8 responsible for evaluating the techno-commercial bid has wrongly .
concluded that joint venture has been disqualified as bid capacity of lead partner and credit facility of one of the partner has not been attached.
7. Per contra, Mr. Tara Singh Chauhan, learned counsel for the respondents supported the impugned decision taken by the respondents in disqualifying the petitioner. He argued that comparative statements drawn by the committee while evaluating the techno-commercial bid/tender clearly reveal that lead partner of the firm had not attached any proof regarding any bid capacity. He argued that other partner of the petitioner firm had not annexed/attached the details of ongoing work which was required as per the condition of the bid document and as such, no fault, if any, can be found with the decision of the competent authority to disqualify the petitioner-joint venture.
8. It is well settled by now that the Courts would normally not interfere in the tender/contractual matters while exercising powers of judicial review. Power of judicial review can only be exercised by constitutional Courts, if it is proved on record that process adopted or decision so made by the Authorities is intended to favour someone or the Authority has acted with malafide or decision made is so arbitrary and irrational that no responsible authority acting reasonably could have ::: Downloaded on - 10/05/2022 20:04:32 :::CIS 9 reached. Needless to say that Court can also exercise power of judicial .
review in case it is shown that public interest is affected.
9. Hon'ble Apex Court in Air India Ltd. versus Cochin International Airport Ltd. (2000) 2 SCC 617 has ruled that even when some defect is found in the decisionmaking process, the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene.
10. Hon'ble Apex Court, in Michigan Rubber (India) Limited versus State of Karnataka and others, (2012) 8 SCC 216, has held that the Government undertakings should have a free hand while framing terms and conditions and Courts should only interfere in case there is material on record to demonstrate that same are arbitrary, discriminatory, malafide or actuated by bias.
11. In case titled: Reliance Telecom Ltd. & Anr. v Union of India & Anr, 2017 SCC OnLine 36 the Hon'ble Apex Court has held that the condition to put a cap and make a classification not allowing certain ::: Downloaded on - 10/05/2022 20:04:32 :::CIS 10 entities to bid is not an arbitrary one as it is based on the acceptable .
rationale of serving the cause of public interest. In the aforesaid judgment, Hon'ble Apex Court has further held that aforesaid exercise allows new entrants and enable the existing entities to increase their cap to make the service more efficient. Moreover, the Court cannot get and dwell as an appellate authority into complex economic issues on the foundation of competitors advancing the contention that they were not allowed to bid in certain spheres. Hon'ble Apex Court, in the aforesaid case has further approved the action of the authorities concerned, who put stringent conditions to ensure competition in the market by preventing large/big operators from acquiring large amount of spectrum.
12. The Hon'ble Apex Court in Central Coalfields Limited v. SLL-
SML (Joint Venture Consortium), AIR 2016 SCW 3814, has held that Court can go into the question of malafides raised by a litigant, but in order to succeed, much more than a mere allegation is required. Bald and unfounded allegations of malafides are not sustainable and that malafides must be specifically pleaded and proved.
::: Downloaded on - 10/05/2022 20:04:32 :::CIS 1113. Now being guided by the aforesaid law laid down by the Hon'ble .
Apex Court from time to time, this court would make an endeavour to decide the issue at hand. It is not in dispute that M/s Shri Shyam Construction Company formed joint venture with M/s AGR Engineers and M/s Deepanshu Gautam as is evident from Joint Venture Agreement placed on record as Annexure P-3 for making bid qua the three works as detailed in the advertisement dated 5.11.2021 (Annexure RA-1). Though petitioner-joint venture participated and submitted tender/bids for three works out of the four tenders invited vide advertisement dated 5.11.2021, but in the instant petition, dispute has been raised qua the one work as has been detailed at Sr. No. 2 of the details of work (supra). It is also not in dispute that tender/bid submitted by the petitioner for the work in question was evaluated by the committee constituted for opening and evaluation of the technical bids of the participating firms. Perusal of the comparative statement annexed as Annexure RA-4 reveals that annual turnover of the lead partner i.e. M/s Shri Shyam Construction Company was found to be Rs. 3,47,07,222/- and aforesaid firm also not annexed/attached details of work executed during the last seven years.
Aforesaid comparative statement further reveals that aforesaid lead partner also failed to attach the documents with regard to the bid capacity. Most ::: Downloaded on - 10/05/2022 20:04:32 :::CIS 12 importantly, aforesaid lead partner of the petitioner joint venture failed to .
place on record any document on record to suggest that it has constructed any new 33/11 kV sub-stations, rather material made available by this firm discloses that it worked as petty contractor for the erection of the work only for Rs. 2,26,064/-, Rs. 25,290/-, Rs. 1,20,049/-, Rs. 1,82, 690/-, Rs.
3,33,680/-, Rs. 1,99,314/- and Rs. 1,24,087/-.
14. Though Mr. Shubham Sood, learned counsel for the petitioner argued that as per clause-10 of the Instructions to bidders, ITB, every partner was not required to meet the minimum criteria listed in the qualification of requirement for the bidder, rather to ascertain eligibility, combination of partners were required to meet the minimum criteria listed in the qualification requirement, but after having carefully perused clause 1.02.5 of volume-1: Annexure A of Section III of the Qualification of Bidders (Annexure RA-5), this court finds no merit in the aforesaid submission.
Clauses 1.02.5 and 1.02.6 reads as under:
"1.02.5 bid capacity:
The bidder shall have to submit the detail of works executed during last seven year, list of ongoing uncompleted works and list of ongoing participated tenders alongwith their estimated cost value duly certified by Chartered Accountant (CA).
The bidder shall satisfy "Bid Capacity" detailed as under in addition to other financial qualification mentioned in the bid.
::: Downloaded on - 10/05/2022 20:04:32 :::CIS 13Bid capacity (C) = (2xA) - B .
A= Maximum Annual Turnover of one year out of last three years on the date of opening of tender.
B= Value of left over existing commitments against various contracts which have already been awarded to firm. C= Where the bidder will be qualified only if his capacity is equal or more than the Estimated/NIT cost of work In question.
Note:- Bidder shall supply supporting document alongwith bid capacity duly signed by Chartered Accountant (CA).
1.02.6 In case a bid is submitted by a Joint Venture (JV), all the partners of the JV shall meet, individually, the qualification set forth at para 1.02.1 & 1.02.2 above and collectively the requirement of para 1.02.3, 1.02.4 & 1.02.5 above. The figures for each of the partner of the joint venture shall be added together to determine the bidder's compliance with the minimum qualifying criteria set out in para l.02.3, 1.02.4 & 1.02.5 above; however in order for a joint venture to qualify, the partner(s) of joint venture must meet the following minimum criteria:
1.02.6.1 At least one partner shall meet, not less than 40% of the minimum criteria given at Para 1.02.3, 1.02.4 & 1.02.5 above AND 1.02.6.2 Each of the other partner(s) shall meet not less than 25% of the criteria given at Para 1.02.3, 1.02.4 & 1.02.5 above"::: Downloaded on - 10/05/2022 20:04:32 :::CIS 14
15. Careful perusal of the aforesaid provision clearly reveals that .
bidder is required to submit the details of works executed during the last 7 years, list of ongoing uncompleted works and list of ongoing participated tenders along with the estimated costs value duly certified by the Chartered Accountant. Besides above, bidder is also required to satisfy the "bid capacity" in addition to other financial qualification mentioned in the bid.
i.e. bid capacity (C) = (2xA) -B. Maximum annual turnover of one year out of last three years on the date of opening of the tender is to be multiplied by two and thereafter to be subtracted from the value of left over existing commitments against various contracts which have already been awarded to the firm. Bidder shall be deemed to be qualified only if his/her capacity is equal or more than the Estimated/NIT cost of work in question. It has been specifically provided in the aforesaid provision that bidder shall supply supporting documents alongwith the bid capacity duly signed by the Chartered Accountant. In the case at hand, comparative statement drawn by the Committee responsible for opening techno-commercial bid reveals that lead partners of M/s Shri Shyam Construction Company did not attach the proof regarding its bid capacity. None of the partner of the petitioner joint venture annexed/attached the details/list of the ongoing works, which was a condition precedent in the bid document, hence, no ::: Downloaded on - 10/05/2022 20:04:32 :::CIS 15 illegality can be said to be committed by the respondents while .
disqualifying the petitioner-joint venture on account of its not furnishing the bid capacity. Similarly, clause 1.02.4 of volume-1: Annexure A-1 Section III of the Qualification of the Bidder of the bid document requires bidder to have liquid assets and/or evidence of access to or availability of fund based credit facility of not less than 32.05 lac i.e. 10 percent of the estimated costs of the project. As per the aforesaid provision, banker should confirm that credit facility earmarked for the work specified on receipt of the bid.
16. In the case at hand, comparative statement reveals that only lead partner annexed certificate of credit facility, whereas same was not attached by any one of the partners i.e. M/s AGR Engineers and M/s Deepanshu Gautam. Though M/s Deepanshu Gautam attached the a document of credit facility, but same was not certificate of the credit facility and as such same was not rightly considered by the committee. Similarly, clause 1.02.1, provides for commercial experience, according to which bidders are/were required to meet the following minimum commercial criteria in past seven years (ending last day of month previous to the one in which applications are invited). Aforesaid clause reads as under:-
"i) Experience in single similar completed work of Projects execution in electrical Transmission or sub-transmission & ::: Downloaded on - 10/05/2022 20:04:32 :::CIS 16 distribution sector costing not less than the amount equal to .
80% of the estimated amount of the Project.
OR
ii) Experience in two similar completed work of Projects execution each in electrical Transmission or sub- transmission & distribution sector costing not less than 100% of the estimated amount in two contracts of each not less than 50% of the estimated amount of the Project.
OR
iii) Experience in three similar completed work of projects execution each in electrical transmission or sub- transmission & distribution sector costing not less than 120% of the estimated amount in three contracts of each not less than 40% of the estimated amount of the Project.
In case a bidder is quoting for more than Project, Pre- qualification requirement shall be examined on the basis of sum of project wise requirements of experience of all quoted projects."
17. Since in the case at hand, neither lead partner nor other partners were having requisite experience for construction of 1x3.15 MVA Sub-Station, it was rightly disqualified on this count also.
18. Leaving everything aside, record reveals that on evaluation of techno-commercial bid of the firm, which participated in the bid, it was found that petitioner was not fulfilling the criteria and as such, was disqualified as non-responsive in terms of the qualification as contained in Annexures P-2 and P-4. Commercial experience of the lead partner and ::: Downloaded on - 10/05/2022 20:04:32 :::CIS 17 other partners was not found as per the standard bid document. Document .
attached with the bid reveals that bank was ready to finance the limit upto Rs. 1.00 crore. Since lead partner nor its other two partners were found fulfilling the eligibility criteria i.e. bid capacity, commercial experience, technical experience and credit facility, no illegality can be said to have been committed by the respondents while rejecting the techno-
commercial bid furnished by the petitioner.
19. During the proceedings of the case, Mr. Shubham Sood, learned counsel for the petitioner, placed heavy reliance upon clause 10 of the Instruction to Bidders (ITB) volume-I Section II, as contained in Annexure P-5, which reads as under:
"ix. In order for a joint venture to qualify, each of its partners or combination of partners must meet he minimum criteria listed in the qualification Requirement for the Bidder in enclosed Annexure -A (BDS) for an individual Bidder for the component of the contract they are designated to perform. Failure to comply with this requirement will result in rejection of the joint venture bid."
20. Perusal of the aforesaid clause reveals that in order for a joint venture to qualify, each of its partner or combination of partners must meet the minimum criteria listed in the Qualification Requirement for the Bidder as enclosed in Annexure A (BDS). Though it has been argued on behalf of ::: Downloaded on - 10/05/2022 20:04:32 :::CIS 18 the petitioner-joint venture that reason given by the respondents while .
rejecting the techno-commercial bid is in complete contradiction with regard to very rule relating to joint venture criteria, which states that all the partners should meet the qualification requirement, but even then, there is no merit in the case of the petitioner for the reason that even if eligibility as required under the bid document of all the consortium partners are taken into consideration jointly, it does not fulfil the criteria. In the case at hand, one lead partners annexed the certificate of credit facility, whereas same was not annexed by the other partners M/s AGR Engineers and document of credit facility attached by another partner M/s Deepanshu Gautam was not found to be certificate of credit facility. Similarly, none of the partner of the joint venture was found to have adequate commercial experience of work in past seven years as required under clause 1.02.1 of the Volume-I of Annexure A-1 of the Section-III of the Qualification of Bidders.
Comparative statement drawn by the Committee clearly reveals that none of the partner of the consortium had annexed/attached the details of ongoing works as well as list of work executed during the last seven years.
No doubt, joint ventures/consortiums are usually created to supplement each other so that all the pre-requisites of bidders process are complied with, but as has been taken note herein above, qualification possessed by ::: Downloaded on - 10/05/2022 20:04:32 :::CIS 19 each partner of consortium if taken into consideration does not make the .
petitioner eligible to participate in the tender in the question and as such, bid furnished by it rightly came to be rejected. Note appended below term "bid capacity" as provided in Volume-I: Annexure-A of Section III Qualification of the Bidder (Annexure P-5), available at page 55 of the paper book, reads as under :
"In case a bid is submitted by a Joint Venture (JV), all the partners of the JV shall meet, individually, the qualification set forth at para 1.02.18 1.02.2 above and collectively the requirement of para 1.02.3, 1.02.4 & 1.02.5 above. The figures for each of the partner of the joint venture shall be added together to determine the bidder's compliance with the minimum qualifying criteria set out in para1.02.3, 1.02.4 & 1.02.5 above; however in order for a joint venture to qualify, the partner(s) of joint venture must meet the following minimum criteria:
At least one partner shall meet, not less than 40% of the minimum criteria given at Para 1.02.3, 1.02.4 & 1.02.5 above AND Each of the other partner(s) shall meet not less than 25% of the criteria given at Para 1.02.3, 1.02.4 & 1.02.5 above Failure to comply with this requirement will result in rejection of the joint venture's bid. Sub contractors' experience and resources shall not be taken into account in determining the bidder's compliance with qualifying criteria."::: Downloaded on - 10/05/2022 20:04:32 :::CIS 20
21. It is quite apparent from the aforesaid note that in case bid .
is submitted by the joint venture, all the partners of the joint venture shall meet individually the qualification set forth at para 1.02.1 & 1.02.2 and collectively, the requirement of paras 1.02.3, 1.02.4 & 1.02.5. As per aforesaid note, figures of each partner of joint venture shall be added together to determine the bidders' compliance with the minimum qualifying criteria set out in para 1.02.3, 1.02.4 and 1.02.5 above. At least one partner shall meet not less than 40% of the minimum criteria given at para 1.02.3, 1.02.4 and 1.02.5 above and each of the other partner(s) shall meet not less than 25% of the criteria given at Para 1.02.3, 1.02.4 & 1.02.5 above. It has been categorically provided in the aforesaid "note" that failure to comply with this requirement will result in rejection of the joint venture's bid and sub contractors' experience and resources shall not be taken into account in determining the bidder's compliance with qualifying criteria. If the aforesaid provision as provided in the bid document is taken into consideration vis-à-vis reason assigned for rejection of the bid submitted by the petitioner, no fault can be found with the decision of the competent authority in rejecting the bid/tender submitted by the petitioner.
::: Downloaded on - 10/05/2022 20:04:32 :::CIS 2122. Consequently, in view of the above, we do not find any illegality .
and infirmity in the impugned order (Annexure P-8) and as such, same is upheld. Accordingly, present petition fails and dismissed being devoid of any merits.
23. Pending application(s), if any, shall also stand disposed of accordingly.
r to ( Mohammad Rafiq ),
Chief Justice
( Sandeep Sharma ),
Judge
5th May, 2022
manjit
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