The First Steps in School Construction Procurement: A Primer

11/13/18

Capital construction projects are both challenging and exciting for school districts. The process is long and arduous—often years pass before the first brick is ever laid. Financing options, bond referendums, community input meetings, architect drawings, more community input meetings—these are all aspects of a process that can derail even the most well-thought out capital construction campaign.   

The Basics

All South Carolina school districts are “political subdivisions” as defined in the State’s Consolidated Procurement Code (“State Code”). S.C. Code Ann. § 11-35-310(23).  However, unlike state agencies, school districts may implement their own procurement code. School districts are only subject to the general rule imposed by S.C. Code Ann. § 11-35-50, which requires that procurement procedures “embody sound principles of appropriately competitive procurement.”

School districts with annual expenditures exceeding $75 million must submit to minor constraints in their procurement code. In these larger districts, there are two options: (1) the district may adopt the State Code in its entirety; or (2) the district may implement its own code that requires approval and review every three years by the South Carolina Office of Procurement.

The governmental procurement process in South Carolina provides much autonomy to local school boards to spend their money as they deem appropriate. The South Carolina Supreme Court in Sloan v. Greenville Hosp. Sys., 388 S.C. 152, 694 S.E.2d 532 (2010), ruled that “local procurement codes need not mirror the State Code, Local Model Code, or any other code.”  

Since school districts are not bound by the particulars of the State Code, the South Carolina Office of Procurement has published a Model Code for school districts which should be referenced if a board decides to draft its own procurement code. The Model Code also may be consulted as a reference where a district’s own procurement code does not address a specific issue.

For major capital construction projects, the absence of an updated and technically correct procurement code can shackle the procurement process.  Simply put, if a district does not have a procurement code that addresses current trends in the construction industry, outdated construction practices can seep into the building phase, costing districts time and money.   

(1) Model School District Procurement Code, https://procurement.sc.gov/schoolscodes

Types of Project Delivery Methods

The first step in procurement for a major construction project is to determine the project delivery method. Careful consideration should be given to how much or how little control the district wants to retain, the stringencies of budget caps, the complexity of the project, and the types of professionals needed or wanted to complete the project. Below is a summary of the common types of delivery methods found in the Model Code.

Design-Bid-Build

This is the most traditional project delivery method. Here, the district selects an architect to design the project. After the design documents are complete, the district issues invitations to bid and lump sum bids are submitted to the district by general contractors.  Generally, under this method, the general contractor with the lowest responsive bid is awarded the contract. This approach provides the district with a defined project scope and single point of responsibility for construction while allowing for aggressive bidding. However, this method generally is longer in duration and does not take contractor quality into account.  This method is favored where the district wants to maintain control over each phase of the construction process and where price is the leading factor driving the project to completion.

Construction Management at Risk (CMAR)

Under this method, the Construction Manager (“CM”) serves as the General Contractor (“GC”) while assuming the risk for construction at the contracted or guaranteed maximum price (“GMP”). The CM is responsible for the project cost and schedule as well as for providing design phase services in evaluating cost, constructability, and services. Selection of the CM is based on criteria including qualifications, experience, and price. The CM then chooses the architects and subcontractors to work on the project without significant input from the district. While this approach provides flexibility and a faster schedule delivery, this method may limit competitive bidding. Most notably, this can be an expensive process because the district is paying a premium for the CM to take on the risk of the project.  

Design Build

Here, the district contracts with a single entity to provide both design and construction services. The architect and GC generally work for the same development firm. This approach allows the district to be heavily involved throughout the process. Generally, the selection of the entity is based on a proposal that the district determines offers the best overall value. The district is required to hire an independent architect to serve as its representative for the duration of the project in an oversight capacity. This independent architect is an added expense not seen in the other delivery methods. Like CMAR, this approach allows for selection flexibility and a faster delivery schedule. However, there is a potential for the loss of checks and balances because the architect and GC work for the same firm.

Source Selection

After the delivery method has been determined, a district must decide how it wishes to secure proposals from interested vendors.  Source selection is the process the district uses to take its project to market.

Competitive Sealed Bids

Under the Competitive Sealed Bid (CSB) approach, price is the sole determining factor at every phase.  This source selection method is often associated with design-bid-build. This type of source selection is good for small or voluminous procurement items.  Quality of the bidder is not heavily considered, and the lowest bidder is awarded the project without much scrutiny of their experience and qualifications.

Competitive Sealed Proposal

Like CSBs, Competitive Sealed Proposals (CSP) look at price as a determining factor but also take other significant factors, such as qualifications, experience, and references, into consideration. A CSP requires the district to put out a Request for Proposal (RFP) to which interested bidders will respond. This method is most appropriate when the project requires special skills or experience, but price is still the number one factor in seeing the project to completion. This method allows the district to include additional qualifications, such as the credentials of those who will work on the project, as part of the bid. In that scenario, only those bidders who meet the additional qualifications will be considered.  After the prescreening of the qualified bidders, the lowest bidder must be awarded the contract.

Qualifications (RFQ)

The least utilized type of source selection is the Qualifications Only option, where the district is procuring professional services, such as auditors, attorneys or engineers. Using this type of selection, the district sends out a Request for Qualifications (RFQ) to which interested bidders may respond. The RFQ solicits the scope of work and does not involve fees. The district then ranks the bidders based solely on their qualifications.  Differences in cost are not considered until the district has ranked each bidder. Once the highest ranked bidder is selected, negotiations of fees and terms commence. If the highest ranked bidder and district do not agree on cost, the district goes on to the next highest ranked bidder until there is consensus on cost. Generally, after three unsuccessful bidders walk away from negotiations, the district starts the process over.

Careful examination of your district’s procurement code can save a great deal of time and money throughout the procurement process. By strategically using the flexibility of statutes and district procurement codes, a major construction project can be tailored in a way to meet the specific needs of your community.  If you have any questions about your district’s procurement code or process, please do not hesitate to contact our firm.

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Teacher Resignations and Terminations: What is a District’s Duty to Report?

09/21/18

Whenever a certified employee is terminated or resigns in the face of misconduct allegations, districts should understand their responsibilities to report the employee’s separation to the South Carolina Board of Education (“BOE”). Also, where a teacher breaches his/her contract by resigning in the middle of the school year, state law provides the procedure for a district to report the matter to the BOE.

a. Reporting Misconduct

Under BOE Regulation 43-58.1, the superintendent, on behalf of the board of trustees, must report to the Chair of the BOE and the State Superintendent the name and certificate number of any certified employee who is dismissed, resigns, or otherwise separates from employment based on allegations of misconduct. Misconduct includes, but is not limited to, actions involving drugs, sexual misconduct, the commission of a crime, immorality, and dishonesty, where the misconduct is reasonably believed by the superintendent to constitute grounds for revocation or suspension of the teacher’s certificate.

A teacher does not have to be convicted of a crime before the reporting obligation is triggered. If a teacher is arrested for any crime indicating misconduct as specified in Regulation 43-58.1, the superintendent must make the report.

The duty to report is mandatory, and the intentional failure of a school board or superintendent to report can lead to serious consequences, such as accreditation and certification deficiencies. Further, the intentional failure of a superintendent to report the termination of a certified employee as required by the regulation may be sufficient cause to revoke the superintendent’s certificate. Given the consequences for failing to make a report, districts should err on the side of reporting, even if there are reservations about whether the misconduct is serious enough to warrant possible action by the BOE.

Often, districts will provide a teacher with the option to resign in lieu of termination. However, if the teacher’s resignation relates to alleged misconduct, the superintendent must still make a report.

Reports to the BOE are made by the superintendent rather than the board of trustees. A superintendent may report by sending an email to SeparationNotice@ed.sc.gov or by sending a letter to the Office of General Counsel at the State Department of Education (“SCDOE”). The notice should include the teacher’s name, certificate number, and a summary of the reasons for the teacher’s separation from the district. SCDOE will investigate the allegations and likely request additional information from the district. State law provides that, until the BOE issues a final order, reports are confidential.

b. Reporting a Breach of Contract

Districts are often faced with teachers submitting resignations in the middle of the school year or during the summer before school starts. When a teacher resigns from a district without being released from his/her contract, the resignation is considered unprofessional conduct, leading to a possible revocation or suspension by the BOE of the teacher’s certificate for up to one calendar year. See S.C. Code Ann. § 59-25-530.

Districts should ensure that their policy provisions regarding contract releases are included in teaching contracts and staff handbooks. We recommend policies state that a resignation should be in writing instead of requiring that it must be in writing. This gives districts more flexibility when dealing with teachers who verbally resign and later seek to rescind the resignation. This option allows the superintendent to promptly accept the verbal resignation on behalf of the district in writing, without having to be concerned that the teacher will change his/her mind and seek to withdraw the oral resignation.

When a teacher seeks to resign, the superintendent or his/her designee should promptly respond in writing, notifying the teacher of the district’s receipt of the resignation and the superintendent’s decision whether to accept the resignation. If the superintendent decides not to release the teacher, the letter should reference the policy on contract releases; state that the teacher is expected to report to work until being formally released; and note that, if the teacher fails to report as directed, it will be considered a breach of contract and reported to SCDOE. This communication should be provided as soon as practicable to avoid complications if the teacher later seeks to withdraw the resignation. Additionally, superintendents should decide whether to accept or reject a resignation in a non-arbitrary manner. As many districts have policies that allow contract releases when certain criteria are met, the district should ensure those criteria are consistently applied to all teachers who seek to resign.

If a teacher is not released from his/her contract and fails to report to work, the board of trustees may vote to report the breach of contract to the BOE. Please note that, unlike a report of misconduct, a breach of contract report requires formal action by the board. After the board votes to report the breach of contract, the superintendent or his/her designee should submit a written complaint to SCDOE. The complaint should include the teacher’s name, certificate number, and state whether the district wishes to pursue suspension and/or revocation of the teacher’s certificate. It is good practice to include a copy of the teacher’s contract, the board of trustees’ meeting minutes noting its vote to report the breach, the teacher’s resignation letter, and any other correspondence exchanged between the district and the teacher regarding the resignation.

Please keep in mind that, if the district accepts a teacher’s resignation, SCDOE will not pursue the teacher for breach of contract. Consequently, if a teacher submits a resignation that does not comply with the district’s policy on contract releases, the district should send a letter notifying the teacher that the resignation is not being accepted and directing the teacher to continue to report to work. If the district decides to accept the teacher’s resignation because the resignation is being submitted in lieu of termination for misconduct, that should be reported under the provisions of Regulation 43-58.1, rather than as a breach.

c. Special Considerations

When an employee resigns under circumstances indicating a suit against the district is likely, the district should consider accepting the resignation and entering into a settlement agreement with the employee in which the employee releases the district from any liability relating to or arising from his/her employment. In some cases, the district may want to consider allowing the employee to remain on paid administrative leave for some period of time in exchange for the employee’s resignation. This is particularly true in cases where, if the employee decides not to resign and instead to legally challenge his/her termination, the associated costs will be significantly more than the cost of a period of paid leave.

Districts should be aware that the BOE may suspend a certified employee’s certificate while she/he is still employed. For example, SCDOE may learn that a teacher has been arrested for criminal domestic violence and summarily suspend the teacher’s certificate before the district takes employment action. South Carolina Code Section 59-25-190 addresses this and provides that, when the BOE revokes or suspends a teacher’s certificate, the teacher’s employment is terminated until a final decision is made. That statute continues to provide, however, that the teacher shall continue to be paid until the BOE makes its final decision. Based on this statute, teachers and their legal counsel will argue that the district must continue to pay the teacher even if though the teacher has been “terminated.” To avoid such a result, districts faced with this situation should carefully consider whether there are sufficient grounds to move forward with terminating the teacher based not solely on the fact of the arrest, but on the underlying facts and circumstances.

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Dress Code Woes: Drafting a Legally Defensible School Dress Code

08/17/18

School dress codes can create an awkward intersection of First Amendment rights, student discipline, unhappy parents, and – sometimes – lawsuits. Broadly drafted certain areas of the dress code and parting with traditional dress code language protects students’ rights while simultaneously achieving administrative goals.

Content Control

It is common practice for school dress codes to prohibit certain images, language, and gestures from clothing worn by students while at school. In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the United States Supreme Court held that students do not lose their constitutional rights to free expression, guaranteed by the First Amendment, at school. The Court further declared that school officials could regulate the content of a student’s speech in instances where “[t]he school expects the speech to substantially disrupt the educational process or setting.” Schools may prohibit the following areas of content-based speech in their dress codes: lewd language, vulgarity, obscenity, images portraying gangs, and images portraying illegal activities.

To maintain a legally defensible dress code, content-based prohibitions should be avoided except for the areas listed above. For example, a dress code that prohibits certain flags from being shown on students’ clothing may be an unconstitutional regulation if there is no evidentiary justification an image of that flag would cause a “substantial disruption” to the school. By broadening the scope against certain messages, administrators can use their discretion to determine the likelihood of a particular image substantially disrupting the school on a case-by-case basis. Setting aside personal views on these images and digesting the reasonableness that a substantial disruption will take place are essential aspects in making proper enforcement decisions that limit the content of student speech.

Other Considerations and Drafting a Policy

1 Hair color and length is an ancillary issue that often arises during dress code discussions. Many courts throughout the Fourth Circuit have ruled in students’ favor concerning hair color and hair length, finding that such restrictions may amount to violations of the students’ equal protection rights under the 14th Amendment and their freedom of expression under the 1st Amendment. Mick v. Sullivan, 476 F.2d 973 (4th Cir. 1973); Massie v. Henry, 455 F.2d 779 (4th Cir. 1972).

Unlike content-based free speech prohibitions, limitations on clothing types and how they are worn are subject to less First Amendment scrutiny. Crafting a dress code that is not intended to target certain classifications of people can pass constitutional muster based on a number of justifications such as safety, health, protection, and prevention of a disruptive environment.

Dress code polices should be based on justifications that the administrator feels is necessary to achieve the school’s objectives as institutions of learning. For example, a dress code that “prohibits all orange colored pants” because orange is the rival school’s colors would not be rationally related to the school’s operation or goals. Reflecting on the justifications for each provision and then stating those justifications directly in the dress code policy are two easy steps that communicate and reinforce the dress code’s purpose.

Dress codes seeking to limit skin coverage are often highly contentious provisions both in courts of law and public opinion. Using a goals-based approach in drafting “skin coverage provisions” is a strategic way to avoid controversy or inadvertent discrimination. The legal risk that accompanies skin coverage provisions arise in the form of the policy having a discriminatory intent against one gender, race, or other protected class of individuals. To avoid this risk, school dress codes should avoid referencing garments that are generally associated with certain classifications of student demographics. Rather than covering every potential fashion ensemble’s limitations, begin drafting your policy by considering the goals and justification you want to achieve. For example, compare the following policy provisions:

  • Policy A: “No miniskirts, short shorts, tight skirts, low rise pants, or biker shorts.”
  • Policy B: “Leg coverings must be worn at the waistline and provide coverage to at least 4 inches above the knee.”
  • Policy C: “No tank tops, halter tops, muscle shirts, or spaghetti straps may be worn as an outer layer of clothing.”
  • Policy D: “A student’s torso must remain covered throughout the school day beginning at waist up to the level of the inner underarm. A minimum of 3 inches of shoulder coverage is required.” 

Polices A and C are very narrow, and even though the goal in preventing these items is to encourage maximum coverage, a student (or parent) could argue that the prohibited item is technically not in line with what is described in the policy. Clothing items are often loosely defined by popular culture trends. Policies B and D are broader and provide technical specifications related to certain points on the body along with the quantitative boundaries the policy is intended to portray. These policies focus on the goals of coverage provisions rather than medium of expression used by students to express themselves through their clothing.

Gender Neutral Language

Currently, there is tremendous focus on gender-based dress codes both in the media and among students and parents. While no major court decision has determined a specific legal standard for “gender-based dress codes” in public schools, creating policies that specifically differentiate in its application based on gender or gender stereotypes are often unconstitutional. One simple way to avoid a facially discriminatory dress code is to remove all references to males and females. Each provision can still apply the same way and will retain its effectiveness without mentioning who the policy is intended to restrict.

For example, in McMillen v. Itawamba Cnty. v. Sch. Dist., 702 F. Supp. 2d 699 (N.D. Miss. 2010) a female student in a Mississippi sought permission for her girlfriend to wear a tuxedo to the school prom. The administration mandated that “females must wear dresses and males must wear tuxedos.” The court agreed with the student that the policy was unconstitutional because the district’s justification—“only boys should wear suits”—perpetuated stereotypes and discriminated based on gender. Simply by evaluating the language of its dress code and eliminating the potentially discriminatory language could have prevented lengthy and expensive litigation for he defendant district in this case.

Uniforms

In Canady v. Bossier Parish Sch. Bd, 240 F. 3d 437 (5th Cir. 2001), the school’s uniform policy required all students to wear a choice of two colors of polo shirts and either navy or khaki bottoms. Parents challenged the policy under the First Amendment’s freedom of expression clause. The court found that though clothing could be a form of expression protected by the First Amendment, the policy would be upheld if it 1) furthered an important or substantial government interest, 2) the interest was unrelated to the suppression of student expressions, and 3) the restrictions on the speech were no more than necessary to further the state interest. The court upheld the school’s policy, finding it consistent with the state’s interest of improving education, content neutral, reasonable restraint on the students’ speech.

In creating a dress code policy that incorporates uniforms, Districts should be careful not to mandate such specific types of uniforms as to create hardships on students and parents who may not be able to afford them. Community engagement and involvement is often an effective approach to a successful campaign to craft a school uniform policy.

Issues surrounding school dress codes will always be a source of conflict for students seeking to express themselves and for administrators who aim to provide a learning environment free from disruption. By considering students’ First Amendment rights and balancing those rights with goal-based policies, you are sure to provide a well-rounded dress code for your students.

We hope that this information has been helpful. If your district has specific questions related to any of this information, please do not hesitate to contact us directly.

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“Don’t Let It Trip You Up”: Students with Disabilities and Field Trips

08/15/18

Concerns of safety and behavioral issues are valid when it comes to taking students with disabilities on school sponsored field trips. However, these concerns do not allow districts to exclude students with disabilities from participating in a school sponsored field trip. Refusing to allow a student with a disability to participate on the basis of his or her disability may violate many federal laws that give protections to disabled students such as the Americans with Disabilities Act (“ADA”). In addition, such denial could amount to denial of a free appropriate public education (“FAPE”) as required under the Individuals with Disabilities Education Act (“IDEA”).

Section 504

Under Section 504 of the ADA, districts are prohibited from discriminating against students with disabilities. This means that districts are responsible for providing services that meet the needs of individual students with disabilities and ensuring equal access. This includes equal access to participation in school sponsored field trips.

The ADA requires districts to presume all students with disabilities will participate in field trips. The ADA requires district to provide reasonable accommodations if necessary to allow the student to participate in the field trip. This may include related services and additional aids to allow the student an opportunity to participate in the field trip. Additionally, the district may not require a parent to accompany a student with a disability as a prerequisite to field trip participation unless district policy requires parent attendance for all students.

If the district believe that a student should be excluded from participating, the district must make that determination on an individual basis. In this scenario, the district bears the burden of demonstrating why the student should not participate.

IEP Concerns

When on a field trip a student’s IEP must be implemented in the same manner as it is at school. This means that if the student’s IEP requires an aide throughout the day, an aide must accompany the student on the field trip. Whatever supports the student’s IEP calls for while the student is at school, the student is entitled to the same for the duration of the field trip. This also includes any Behavioral Intervention Plans (“BIP”) that may supplement the student’s IEP.

Individualized Determination Process:

Districts should have a process in place in the event that a determination of exclusion from a field trip is necessary. This process should be an individualized determination of the student’s disability and contemplate the following:

  • The student’s IEP, especially any provisions that relate specifically to field trips
  • The purpose of the field trip (academic or non-academic)
  • Any accommodations or related services and aids that would enable the student to fully participate in the field trip  

A best practice would be to have the student’s IEP discuss and aid in making such a determination. These people are generally the most knowledgeable about the student and his or her needs and capabilities. Additionally, the district should provide the parents notice of its decision to exclude the student from participating in the field trip as well as any accommodations and related services and aids that would provide the student equal access to the field trip.

Should you have any questions about your district’s policies or practices related to this issue, please feel free to contact us!

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Planning for Protests: Balancing Protected Student Speech with the Duty to Maintain a Safe and Secure School

08/15/18

 

In the wake of the recent Parkland, Florida school shooting, students across the country are organizing, protesting, and advocating for stricter gun laws and increased school security at the local, state, and federal levels, with at least three national school day walkouts set to take place in the coming weeks. The largest and most publicized, “#ENOUGH,” requests that all K-12 students walk out of school for 17 minutes (symbolic of the 17 Parkland victims) on March 14th at 10:00 a.m.—the one-month anniversary of the Parkland tragedy. It is our understanding that there are more than 2000 walkouts planned across the country under the #ENOUGH banner, with 19 currently organized in South Carolina schools.

Given the potential for these walkouts, school officials are questioning whether they can and should allow students to participate during the school day, which will result in students walking out of class, most during instructional time. While some South Carolina districts have decided to prohibit their students from participating based on safety concerns related to large numbers of students gathering outside the school, others have indicated a desire to support the planned walkouts so long as they do not create a substantial disruption to the school environment or create a risk for students. In that regard, concerns have arisen as to those students who may refuse to return to class once the planned walkout time has ended, as well as those students who use the opportunity to leave the school campus.

School officials should keep four things in mind when approaching planned protests during the school day: (1) recognizing that students generally have a right to peacefully protest on school grounds during the school day; (2) providing a safe and secure space for the protest to occur; (3) determining how to handle a protest that becomes disruptive; and (4) educating staff, parents, and students on the disciplinary consequences that will occur if school policies are violated in connection with the protest.

In considering whether students have a right to participate in a walkout, the First Amendment provides that a protest, such as a walkout, is a form of protected expression. In the 1969 case of Tinker v. Des Moines Independent Community School District, the United States Supreme Court held that students could not be punished solely for wearing black armbands during the school day in protest of the Vietnam War.

The Tinker decision does not mean that school officials are barred from taking any disciplinary action against a student participating in a protest. If a school official determines that the protest has or may “materially disrupt classwork or involve substantial disorder. . .” school officials may take disciplinary against a student

without running afoul of the First Amendment. For example, if students are directed prior to a planned walkout that they will be allowed to participate within the parameters established by the school, but will be required to return to class after the walkout is over, and a student defies that directive, that student may lawfully be disciplined in accordance with the district’s student code of conduct, e.g., for the offense of “failing to follow the directive of a school official.” Likewise, if the school has established parameters for student participation in a planned walkout, such as the place where students are expected to gather and remain silent, and a student does not adhere to those parameters, the student may be disciplined.

If a school is aware that its students are planning to participate in one of the nationally promoted and scheduled walkouts, school officials should designate a space where students can safely congregate on school grounds. To alleviate concerns that a potential shooter may target that space, schools should consider not making the location of that space known ahead of time. Schools also should ensure that the selected space is adequately supervised by school staff, as well as by law enforcement, if feasible. As it is likely that not all students will participate in the walkout, schools should make certain that students who opt to remain in class are appropriately supervised. In that regard, school staff should be reminded that, unlike students, they do not have an unfettered First Amendment right to participate in a protest that occurs during instructional time.

The #ENOUGH protests are slated to take place on a specific date and at a particular time. The Action Network organizers of the #ENOUGH walkouts encourage peaceful and conflict free protest techniques. School officials should take advantage of the information on the Action Network’s website to communicate to faculty and staff what they should expect in the event a walkout occurs.

In addition to the nationally planned protests, districts should be aware that individual students or groups of students may decide to plan their own protest during a school day. In responding to the possibility of such actions, districts should consider each situation on a case-by-case basis, keeping in mind that, if the protest materially disrupts classroom instruction or creates an unsafe school environment, students may be appropriately disciplined. We do not recommend that districts issue a blanket statement that such protests will not be permitted, as such a prohibition could result in a legal challenge.

Finally, to avoid claims by students and parents/guardians that they did not understand that disciplinary sanctions could be applied to certain student conduct during a planned walkout, school officials should remind students of the applicable provisions of the student code of conduct. We also recommend that districts reach out to parents/guardians to inform them of how they are going to handle student participation in the walkouts, including the circumstances under which a student may be disciplined,

If your district has further questions about the legality of student protests and related issues, please feel free to contact us.

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