Managing bribery and corruption risks in the construction and infrastructure industryDocument Transcript
Managing bribery andcorruption risks in theconstruction andinfrastructure industry
“Any competitiveadvantage gained throughcorruption is a mirage.”Robert S. Khuzami, Director of Enforcement,US Securities and Exchange Commission
Managing bribery and corruptions risks in the construction and infrastructure industry 1Introduction 3Regional and country profiles: 4Europe 4The Middle East 6India 8Africa 10What should companies be doing? 12Eight steps to an effective compliance program 14How Ernst & Young can help 16Global reach and experience 18Contacts 20Contents
Managing bribery and corruptions risks in the construction and infrastructure industry 3Why is bribery and corruption sucha challenge in the sector?In addition to the bribery and corruptionrisks prevalent in all industries,companies in the sector face a numberof specific risks due to the followingfactors:• Obtaining planning permission andlicenses is a lengthy process and canbe open to abuse.• Funding by government, public orprivate partnerships or by donoragencies in developing economiesrequires many interactions withgovernment officials.• The use of subcontractors andconsultants or agents is prevalent,increasing the risk of third partiesmaking or soliciting bribes. In ourrecent 12th Global Fraud Survey,respondents from the constructionand infrastructure sector were morelikely than average to see bribery ascommon practice in their sector.2• Joint ventures are commonly used;indeed, in some jurisdictions it isnecessary to have a local partnereither as a result of legal requirementsor from a commercial perspective.• Negotiations concerning additions tospecifications and cost overruns arecritical to determining the profitabilityof a contract. These negotiations offeropportunities for consultants or clientsto attempt to leverage payments orother benefits.• Many contracts are large, anddecision-making power can sometimesbe concentrated in the hands of asmall number of politically exposedpersons (PEPs).• Organized crime networks exploitlabor-intensive sectors such asconstruction and infrastructure.This paper offers a perspective on thebribery landscape across Europe, theMiddle East, India and Africa (EMEIA),including enforcement trends, risks forbusinesses to be aware of and mitigatingsteps companies may want to consider.Introduction1Trace International Global Enforcement Report 2011.212th Global Fraud Survey, Ernst & Young, 2012. The construction and infrastructure sector has featured significantly in bribery prosecutions, with11% of all enforcement activity, since the US Foreign Corrupt Practices Act (FCPA) was introduced,relating to the sector.1Recent headline-grabbing cases demonstrate that organizations in theseindustries continue to face significant bribery and corruption risks.
4EuropeEurope is generally seen as aless corrupt region — but variationsexistMost European countries rank in theupper quartile in TransparencyInternational’s 2012 CorruptionPerceptions Index (CPI). Indeed,Scandinavian countries are ratedamong the least corrupt in the world(Denmark ranked one, Sweden rankedfour. But other European countriessuch as Russia (133), Ukraine (144),Greece (94), Romania (66) andTurkey (54) rank significantly lower.Anti-bribery or anti-corruption(ABAC) legislation differssignificantly between statesAlthough 24 European countries haveratified the OECD Convention onCombating Bribery of Foreign PublicOfficials in International BusinessTransactions (the OECD Anti-BriberyConvention), there are significantdifferences in domestic ABAC legislationacross Europe.Over recent years, many countries haveupdated their legislation: the UKintroduced the Bribery Act (effectivefrom July 2011); Spain and France havemade amendments to their legislation;Russia has introduced new lawsincreasing penalties for non-complianceand has ratified the OECD Anti-BriberyConvention. But nearly half of Europeancountries have not yet codified theConvention in domestic law and haveunderdeveloped ABAC legislation.Enforcement likely to riseFor much of the last decade, discussionof ABAC issues in Europe has beenframed by the extra-territorial reachand enforcement of the FCPA. Europestill lags behind the US in terms ofenforcement (as of last year, US actionsoutnumbered the rest of the world bythree to one). Updated legislation inmany European countries, however,has given prosecutors the power toinvestigate conduct overseas and toimpose significant civil andcriminal penalties.“Corruption threatensthe integrity of markets,undermines faircompetition, distortsresource allocation,destroys public trust andundermines the rule of law.”G20 Anti-Corruption Action PlanRegional and country profilesManaging bribery and corruptions risks in the construction and infrastructure industry
Managing bribery and corruptions risks in the construction and infrastructure industry 5Our experience of bribery andcorruption in EuropeMitigating the risk of bribery andcorruption remains a significantchallenge for corporate boards acrossthe region. We have observed thefollowing challenges as being commonto many companies in the sector:Use of intermediaries — manyEurope-based construction companiesuse intermediaries to accelerate theprocess of obtaining required permits,authorizations and customs clearance.However, there is a risk that fees paidcan be inflated to mask the payment ofa bribe by the intermediary to adecision-maker.Increased competition andchallenging market conditions —new players entering the sector increasecompetition for contracts; a belief thatothers will be more aggressive canpressure staff to push boundaries andtake risks that might not accord withtheir company’s corporate culture. Also,current market conditions are placingincreased stress on executives todeliver growth.Corporate entertainment —companies commonly use entertainmentto improve relationships with clients andultimately to influence decision-makers.In many cases, this is legitimate, but itcan be difficult for companies todetermine appropriate limits.Germany was classed as an“active” enforcer of foreignbribery by TransparencyInternational’s 2012Progress Report on theOECD Anti-BriberyConvention, on the basis of176 settled cases of foreignbribery and 43 investigationsin progress. This has madeGermany the most activeenforcer within Europe.
6 Managing bribery and corruptions risks in the construction and infrastructure industryThe Middle EastIt is generally perceived that therisk of bribery and corruption in theMiddle East is highMany Middle Eastern countries fallin the lower half of the CPI (the GulfCooperation Council countries andJordan are notable exceptions).Several high-profile corruptioninvestigations in Western countrieshave related to activities in the region.Many countries have adopted theUnited Nations Convention againstCorruption (UNCAC)UNCAC has been ratified by most MiddleEastern countries. Oman has not signed;Saudi Arabia and Syria are signatoriesbut have not yet ratified. However, theimplementation of the specific policiescontinues to pose a challenge.Enforcement is expectedto increaseThe effects of the recent global financialcrisis on the region (particularly forthe real estate market), and the morerecent political unrest in some countries,is increasing pressure on governmentsand leaders to strengthen their ABAClaws and practices. For example,Saudi Arabia last year initiated acrackdown on corruption through thenewly created National Authority forCombating Corruption.The Authority’s chairman stated thattheir anti-corruption drive would betargeting “big heads.” In Qatar, a newanti-corruption committee has beencreated, monitoring enforcement of theABAC provisions in the criminalprocedures law, and in Bahrain, thePrime Minister called for new measuresto combat economic crime and theestablishment of an anti-corruptionagency. Despite these developments,however, progress in tackling corruptionis likely to remain slow.Our experience of bribery andcorruption in the Middle EastWe have seen increasing ABAC measuresin many countries in the Middle East, butbribery and corruption is still prevalent,as shown by the numerous FCPA casesinvolving conduct in the region.Our recent experience suggests thatcompanies should be particularly awareof the following challenges in the region:Lack of clear guidance orprocess — companies often fail toprovide clear guidance to employeesregarding acceptable and unacceptablebusiness practices specific to the region,or the procedures to manage situationswhen they arise.Regional and country profiles
Managing bribery and corruptions risks in the construction and infrastructure industry 7Gifts and “kickbacks” — in the contextof business dealings, the provision ofgifts and kickbacks is common and oftenviewed as normal business practice inthe market.Conflicts of interest — it is commonfor conflicts of interest to be overlooked.For example, sales commissions may bepaid to companies in which managementhas an interest; similarly, improper salesdiscounts may be provided to partiesconnected to the sales team.Lack of proper tender or contractaward process — control deficienciesare common, leading to contracts beingawarded by board members and seniormanagement without effective duediligence or “not at arm’s length.”Requests for facilitation payments —these can be common in areas such asobtaining visas for employees andobtaining licenses and planningpermission for new sites. Localoperators can view them as essential togetting business done. But they areillegal under the UK Bribery Act and areunder intense scrutiny by external thirdparties such as the OECD Anti-BriberyWorking Group.There have been high-profilecorruption cases throughoutthe region. This has resultedin a greater focus bygovernments on the issueof corruption and the needfor greater transparencyand accountability.
8 Managing bribery and corruptions risks in the construction and infrastructure industryRecent prosecutions have broughtbribery and corruption to the foreBribery and corruption remain amajor challenge in India. The 2012Transparency International CorruptionPerceptions and Bribe Payers Indicesrank India 94 (out of 176) and 19 (outof 28) respectively, indicating theseverity of the issue. Twenty-eightpercent of India respondents to our 12thGlobal Fraud Survey were willing to makecash payments to win or retain business,compared with 15% of respondentsglobally.3Hardening public attitudesand the need for businesses to secureforeign direct investment have led tostrengthened ABAC efforts.Government introducing newanti-corruption legislationIndian policy-makers are taking robuststeps to increase the confidence ofinvestors — corporate and public. Inrecent Parliamentary sessions, a numberof important bills were introduced,including the Prevention of Briberyof Foreign Public Officials Bill, theAnti-Corruption, Grievance Redressaland Whistleblower Protection Bill andthe Companies Bill 2011. In addition tothis, ratification of UNCAC by theGovernment in 2011 has helped Indiademonstrate its commitment toimproved governance. In anothersignificant development, theGovernment has submitted the LokpalBill, which aims to create stricterregulations and has given morecredibility to its fight against briberyand corruption.The impression of poorenforcement is changingThe perception that corruption is rarelyprosecuted is changing as a result ofrecent investigations and high-profileprosecutions — for example, the arrestof former cabinet-level officials in the2G telecoms license scandal. It is likelythat bribery and corruption will continueto feature as a political hot topic,resulting in increased enforcement aspolitical parties seek to demonstratetheir willingness to act.Our experience of bribery andcorruption in IndiaThrough our experience of investigatingalleged bribery and corruption in India,we have observed many changes overthe years and, unfortunately, somelong-standing challenges:India312thGlobal Fraud Survey, Ernst & Young, 2012. Regional and country profiles
Managing bribery and corruptions risks in the construction and infrastructure industry 9Bribes to government officialsremain a serious risk — India’s CPIscore has got worse over the past year.In some cases, officials have expectedbribes from project officials to releaseproject funds, for example, where theyhold funds of donor agencies.Financial manipulation to obtainfinancing benefits — promoters orbuilders may manipulate financialstatements and valuations to obtainfinancing on particularly beneficialterms. In our recent Global Fraud Survey,16% of India respondents were preparedto misstate financial performance,significantly higher than average.4Weak records management —poorly developed systems provide anopportunity for the manipulation ofownership documentation, including titleto land rights.Pressure from project officials —application of inappropriatepressure to select a certain agent orcontractor might indicate a hiddenfinancial interest.Limited or unreliable information —in practice, it is often difficult forcompanies to conduct due diligenceon contractors, subcontractors andagents due to poor information. Theintroduction of unique identifiers forbusinesses by the Government mayimprove this situation going forward.But obtaining complete and accuratehistorical information is likely to remaina challenge.412thGlobal Fraud Survey, Ernst & Young, 2012.Corruption is perceived asbeing accepted in businessdealings as a way of avoidingadministrative bottlenecks.Low public sector wagesincrease the risk of briberyfor quick favors orignoring wrongdoing.
10 Managing bribery and corruptions risks in the construction and infrastructure industryAfricaAfrica is perceived to have a highrisk of bribery and corruption,but the situation is complexAlthough the majority of Africancountries are in the bottom half of theCPI, the rankings of individual countriesvary widely. For example, Botswana isranked number 30, ahead of manyEuropean countries, whereas Somaliais ranked 174, considered the mostcorrupt country in the index.Africa is attractive to many constructioncompanies because it contains someof the fastest-growing economies inthe world. Corruption and securityissues, however, are significant barriersto investment, according to ourrecent survey.5There is no common legislationgoverning bribery and corruptionacross AfricaThe Convention on Preventing andCombating Corruption was agreed by theAfrican Union in 2008. The Conventionis a regional agreement setting theframework for the prevention ofcorruption, but this has not driven thedevelopment of a common legislativeapproach across the region.In some countries, inefficient andopaque political systems are preventingprogress in introducing new legislation.However, many governments arestrengthening ABAC laws and practices.Enforcement is increasingThere has been a significant amount ofFCPA enforcement related to businessconduct in Africa across a number ofindustry sectors, including constructionand infrastructure. Given the extent ofthis enforcement and the media attentionassociated with it, some countries arestarting to act. Overall, however, thelevel of local enforcement remains low.Only 10% of the Africa respondents inour recent 12th Global Fraud Surveystate that regulators in their countryappear willing to prosecute cases ofbribery or corruption and appeareffective in securing convictions.6Rwanda’s fight againstcorruption is paying off.This country’s ranking inTransparency International’sCPI has improved from 89 in2009 to 50 in 2012.5Africa by numbers, Assessing market attractiveness in Africa, 2012.612thGlobal Fraud Survey, Ernst & Young, 2012. Regional and country profiles
Managing bribery and corruptions risks in the construction and infrastructure industry 11Our experience of bribery andcorruption in AfricaMany of the corruption risks inAfrica are heightened due to thelack of sophisticated systems (paperrecords being an integral part of manybusiness processes) and poor controlenvironments. Our experience showsthat the following are among the keychallenges facing companies operatingin the region:Informal payments — improperpayments by businesses in Africa canarise due to significant levels of “red tape,”particularly relating to business permits,licenses and the import of goods.Use of intermediaries — agents,brokers and facilitators are used to“assist” with negotiations. Fees paid tothese intermediaries are often non-distinctand might be used to disguise bribes.Petty corruption — petty corruptioncan be found in areas such asidentification books, marriage andbirth certificates and driving licenses.Transparency International’s GlobalCorruption Barometer 2010/11 statesthat more than 50% of people insub-Saharan Africa reported payinga bribe; more than anywhere else inthe world.“The demand from peoplefor the accountable useof power and an end tocorruption is indeed one ofthe key social drivers ofour time.”Cobus de Swardt,Managing Director,Transparency International
12 Managing bribery and corruptions risks in the construction and infrastructure industryDealing with bribery and corruption hasalways been a challenge for companiesin the construction and infrastructuresector. The awarding of contracts andobtaining of planning permission orpermits create particular bribery andcorruption risks, with many of theenforcement cases in the public domainrelating to these areas.Key activities of a successful ABACprogram for companies in the sectorinclude:• Setting the correct tone at the top. It isextremely important that ABAC is onthe agenda of senior executives.• Completing a comprehensive briberyand corruption risk assessment —considering the type and location ofprojects undertaken so that thespecific risks faced are identifiedand understood.• Once the risk assessment is complete,reviewing the overall bribery andcorruption compliance program todetermine if it is proportionate to therisks identified.• Reviewing existing communicationand training programs to help ensurethat the desired corporate culture isachieved on the ground, especiallyin more remote and higher-risklocations. In our recent 12th GlobalFraud Survey,7only 55% of respondentswere aware of anti-bribery trainingwithin their organization.• Conducting due diligence oncontractors, subcontractors andagents, with continued monitoringperformed to make sure they complywith relevant ABAC laws.• Ensuring that there are clear contractswith consultants and agents that referto ABAC procedures and give thecompany audit rights over relevantcontract records. Payments toconsultants should be reviewed andapproved at a senior level of theorganization, including the paymentof expenses.• Proactively analyzing operational dataon an ongoing basis, using forensicdata analytics to detect transactionsthat indicate a heightened risk ofbribery and corruption.• Monitoring expenses such ascorporate entertainment carefully,paying particular attention to thespecific recipient, the context and thetiming of the entertainment or gift.• Undertaking vetting of key employees,contractors or partners, especiallythose unknown to the company, forexample, in joint venture situations.In our recent Global Fraud Survey,only 59% of respondents reportusing an approved supplier databaseand almost half fail to check theownership or backgrounds ofthird-party suppliers.8What should companies be doing?712thGlobal Fraud Survey, Ernst & Young, 2012.812thGlobal Fraud Survey, Ernst & Young, 2012.
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14 Managing bribery and corruptions risks in the construction and infrastructure industryEight steps to an effective anti-corruptioncompliance program1Conduct a riskassessment programWhat risks are posed by the nature of the company’s operations; the degree of businesswith governmental entities; its use of agents and other intermediaries; the countries itworks in; and the regulatory environment it works under? Identify the policies and controlsin place that mitigate the corruption risk and evaluate their strengths and weaknesses.2Develop a corporateanti-corruption policyThere needs to be a clear and unambiguous statement of the company’s position that bothgovernmental and commercial bribery on any scale will not be tolerated. The policy willprovide operational guidance on such issues as bribing government officials; commercialbribery; misreporting and concealment in accounting records; facilitating payments,charitable and community gift giving; and policies covering travel, entertainment and giftsfor government officials.3Implement anti-corruptionpolicies and controlsWe know that 90% of reported FCPA cases have involved outside agents and businessconsultants. Putting in contracting provisions and warranties that include compliance withlegislation and company policy are important controls. It is also key to implement someform of certification to ensure there has been compliance. Make sure special payments andapprovals are recorded. Do you undertake vendor anti-corruption audits? How does thecompany process and deal with employee travel, gifts and entertainment? Developguidance that ensures charitable giving ends up in the right hands and gifts are bona fide.4Implement anti-corruptionfinancial controlsImplement additional financial controls in high-risk countries and for high-risk operations.These may include controls around banks accounts and petty cash, executive travel, mealsand entertainment. Transactions with consultants, agents and high-risk intermediaries willalso need enhanced controls.Implement strict account posting requirements for high-risk transactions, includingsufficient supporting documentation and adequately delegated authority to promoteincreased transparency and accountability.Ernst & Young has developed an eight-step program to ensure you have a robust complianceframework in place:
Managing bribery and corruptions risks in the construction and infrastructure industry 155Conduct anti-corruptioncompliance trainingTraining is imperative for global organizations operating in countries that have a history ofcorruption. Local employees need to understand that your culture may differ greatly fromtheir own. Training should also be prescriptive and pragmatic — it should explain therequirements of the FCPA and UK Bribery Act, but also give examples of “red flags” ordifficult situations that may relate directly to them as employees. Training should beappropriately targeted. It should be based on roles and responsibilities within the companyand be periodically updated for new and transitioning employees.6 Monitor the programOrganizations need to be able to test for compliance by identifying potential violations or“red flags.” This is effectively an anti-corruption audit. In the best case scenario, ABCAnalytics can be used as a tool for compliance monitoring. A form of anti-corruptioncertification should be designed for employees, which should be re-tested periodically.Are there tests for compliance with policies and are there concrete and well-understoodconsequences of non-compliance?7 Anti-corruption proceduresin mergers and acquisitionsCompanies should conduct appropriate due diligence on potential acquisitions to avoidthe risk of inheriting liability for legacy actions. Compliance with ABAC tenets should behigh on the integration plan and look at all the corruption risks potentially posed by thenew organization. M&A checks should not end before the acquisition — they need to becontinued after the integration process.8 Re-assess risk andmodify programCorruption risk assessments should be conducted periodically to ensure that theanti-corruption program is evolving to meet new risks posed by the changing businessand external environment.
Global bribery and corruptionrisk assessmentWe worked with senior client staff toconduct a bribery and corruption riskassessment for a major constructioncompany. Our client had recentlyacquired a global construction servicesbusiness and needed to ensure that thenew business had a consistent approachto bribery and corruption risk mitigation.The review of the new business waspiloted in countries in Asia and Africa.We developed a bribery and corruptionrisk assessment tool that enabled ourclient to focus on the ABAC compliancecontrols for subsidiary operations.The tool was used to identify higher-riskcountries and projects in order tofocus resources.As a result of our work, the companymade remedial changes to key businesspractices in high-risk countries.Investigation into alleged bribes togovernment officials in EuropeOur client was subject to an FCPAinvestigation as a result of alleged bribespaid to government officials. We wereengaged to collect and analyze alldocumentation relevant to theallegations. Our international team ofe-disclosure specialists processed15 million electronic documents over athree-week period.We assisted our client and it’s legalcounsel in designing and implementingrobust and efficient disclosure strategiesand helped them deal with variousjurisdictional data privacy concerns.By using a combination of interviewingtechniques and analysis of the electronicdata, we helped our client in itssubmissions to the US Securitiesand Exchange Commission (SEC).Our technology tools and overallinvestigation approach allowed the clientto provide timely responses to the SEC.Investigation in AfricaWe were retained by outside counsel tothe audit committee of our client toinvestigate concerns raised by a newfinance director.We conducted interviews and reviewedcustoms clearance documents formultiple years to identify potential FCPAviolations. Our findings were reportedto the board of directors and theaudit committee.As a result of our work, the companymade improvements in its local policiesand internal controls, as well as its FCPAcompliance program.Whistle-blower investigation in AsiaWe were engaged by an S&P 100 companyto lead an investigation in multiplecountries in Asia following whistle-blowerallegations stemming from the company’sacquisition of a group of companies. Weworked closely with two external law firms,and with the client’s general counsel andhead of internal audit in each country.We were asked to report regularly to themanagement committee, the externalauditor and ultimately to the SEC.Our work enabled our client to actswiftly, leading to voluntary disclosure ofcertain FCPA issues identified throughthe investigation. In addition, we assistedexternal counsel in identifying andformulating remedial measures.16 Managing bribery and corruptions risks in the construction and infrastructure industryHow Ernst & Young can helpThrough our experience in advising on a number of cases in the construction and infrastructure sector,and our global reach, we are ideally placed to help you to minimize the risk of bribery and corruption inyour business. Some recent case studies include:
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Countries or territories in which Ernst & Young professionals are located.18 Managing bribery and corruptions risks in the construction and infrastructure industryGlobal reach and experience
Managing bribery and corruptions risks in the construction and infrastructure industry 19Our construction and infrastructure networkOur construction and infrastructure team is part of a7,000-strong global Real Estate practice, serving morethan 4,000 real estate clients worldwide. Our people havediverse backgrounds and a wealth of experience. Many ofthem have served in industry and government, whileothers have professional services experience and holdrelevant certifications.Our team comprises experienced professionals usingsophisticated tools and proven methodologies to meet themost complex and demanding challenges and providecommercial and technical services on a global basis. The teamincludes forensic accountants, certified fraud examiners,forensic technology professionals, economists, regulators,quantity surveyors, architects, project managers and delayanalysts. Our in-depth sector knowledge and experienceallows us to advise clients and their legal advisors in anefficient manner.Our global reach and experienceWe operate globally, delivering high-quality service, using localknowledge where our clients operate. We have over 1,600fraud investigation and dispute services professionals, based in50 countries, with experience in business integrity, investigations,disputes and forensic technology.We are the only major professional services organization tooperate across Europe, the Middle East, India and Africa, undera single EMEIA structure. We therefore have a borderlessapproach to business in the emerging markets of theCommonwealth of Independent States (CIS), India, the MiddleEast and Africa as well as the established markets of Europe.This enables us to leverage our strengths more efficiently andmove swiftly to bring together our teams to serve our clients,drawing on our industry experience across all of our services in87 countries.Our Fraud Investigation & Dispute Services practiceDealing with complex issues of fraud, regulatory complianceand business disputes can detract from efforts to achieve yourcompany’s potential. Better management of fraud risk andcompliance exposure is a critical business priority — no matterthe industry sector. We assemble the right multidisciplinaryand culturally aligned team to work with you and your legaladvisors. And we work to give you the benefit of our broadsector experience, our deep subject matter knowledge and thelatest insights from our work worldwide.
20 Managing bribery and corruptions risks in the construction and infrastructure industryFor further help and information, please contact one of our specialist or local area representatives orlog on to www.ey.com/fidsName Role Office telephone EmailGlobal LeaderDavid Stulb Global Leader + 44 20 7951 2456 firstname.lastname@example.orgConstruction SectorErik Skoglund Partner + 46 85 205 9939 email@example.comKevin Hills Partner + 44 78 6787 5035 firstname.lastname@example.orgJohn Auerbach Partner + 86 21 2228 2642 email@example.comAmy Hawkes Partner + 1 213 977 3720 firstname.lastname@example.orgRegional LeadersJohn Smart Northern Europe + 44 20 7951 3401 email@example.comPhilippe Hontarrede Western Europe + 33 1 46 93 62 10 firstname.lastname@example.orgStefan Heissner Central and Eastern Europe + 49 211 9352 11397 email@example.comBob Chandler Middle East + 971 4 7010 765 firstname.lastname@example.orgArpinder Singh India + 91 22 6192 0160 email@example.comCharles de Chermont Africa + 27 31 576 8050 firstname.lastname@example.orgBrian Loughman Americas + 1 212 773 5343 email@example.comChris Fordham Asia Pacific + 85 22 846 9008 firstname.lastname@example.orgContacts
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