mayor please the court should the court who the court should grant binns appeal here based upon three issues first the b o p abused its discretion in keeping alston wilks within the competitive range one when it failed to timely establish its purpose alving now the solicitation clause here did make this of that initially a matter of discretion to the contracting officer however bynum believes here that there was an abuse of that we can only look i think the facts in this case right well your honor what bynum is has attempted to establish his disparate treatment and that other percheron has already been with a gated and has already been before this court and essentially what banham is attempting to show is that we had two very similar situations in which offers failed to time where the abuse of discretion took place in this case  and a very virtually identical solicitation i believe the clause referenced was exactly the same or substantially the same and in both cases w an offer failed to timely submit zoning documentation in the previous case that was already decided the court found that then him was properly eliminated from the competitive range and then here i do you have any case any precedent in which we've taken when there's discretion to be had and on the facts before us we're we used other cases with different parties under different contracts to say there's an abuse of discretion because they did exercise their discretion in one way in the other case and in this way here i don't know i can recall seeing a case their discretion in every one of those cases where i don't believe so because here we're talking about one agency's actions with respect to one specific offer because in both of these process when the b o p s side clarification regarding austin special use permit that it ultimately did finally received well after the deadline and also made the material misrepresentation had indicated to the city council that would only be how except ng nonviolent offenders yet then it went back and working with the contracting officer went down and got the guy who had made the initial k just say all right now you've given me all information then we're still ok to go why is that not sufficient well the your explanation is exactly where where we have the put where the problem lies because the also works did not go back to the city council who was responsible for granting the special use permit instead they went to a zoning official who was for you to do what you're doing well your honor was simply based up mr herman was able to sign that special use permit based upon the vote of the city council and quite simply we believe that bans under the impression been a belief that that special use permit the vote approving that by the city council was obtained through false pretenses essentially based on the representations that they were perhaps but it's the end of the day it was the city council who was to vote on that we believe that once again the city council we know is not have are we in that region is it in the record what the rules are know i believe the special use permit or sir to correct myself i believe the documentation from the b o p requested that also was provided documentation indicating that the city council was aware of the requirements when it voted when it made its vote vote and determination which did not happen so is the theory that the government abused its discretion by contracting office and not on the city council your honor and also not be part of the contracting officer because i don't believe the contracting officer would have necessarily known that contracting officer had made that request for for clarification from also wilson also works did not provide that we did not provide proper clarification inst that of providing don't either get a building permit or other walk or if you discontinue the development don't continue it within a year expires on its own accord and we believe that that simply did well also works did obtain a zone and permit a special use permit well over a year had passed and no they didn't get a extension they didn't get any they didn't ask for any extension they didn't maintained throughout the life of the contract and the b o p and also look seem to be making an argument that it's ok to have almost like a green light red light green light red light type of sort i think when you when you're dealing with zoning requirements it's difficult to imagine such a hypothetical because you have different jurisdictions with different zoning ones and so the contracting officers very well may have very different views about the here and a lot of exceptions to what the norm is a lot of loosening of the standards that apply now it may be that the statute permits discretion and the authority to that i think that the difference is there was no irregularity there's no question here that the contracting officer had the authority the discretion not to eliminate even if there was a late bruise o insulation there's no question that the contract officer had the authority and had the discretion to issue an extension of the time and there's no question that the contract officer had the authority and the discretion to take it up as a part of discussion they could have done any of those things what was strange is that they issued an extension but then said but we're still not going to consider it we're going to take it up in discussion it was a strange damped i agree but none of it was  irregular none of it exceeded either the authority or the discretion that inherently existed and in fact you know at the end of the day what you all are deciding is did judge horne make any conclusions of law that are wrong as a matter of law and did she find any facts that simply were clearly erroneous and she did neither comment was made and i don't want to jump around but i want to dress a few of the things that you all raised  quest this question about a misrepresentation and there has to be we're all familiar with the basic concept that to be a reliance a reasonable reliance to help he didn't get a misrepresentation and they didn't rely on a misrepresenting what they're really trying to argue is that there was originally in the original application and misrepresentation to the city council well that wasn't a process which was open to the public event to believe there was something wrong at that level they had the judge is that they don't in any way establish how it went too far in fact the record here reveals that austin welt kept the bill he informed of the status of the application for the special permit that there was an you and i think they do need to read the review drama but this court has admonished many times that especially in a situation like this where you have a negotiated for chairman with the best value component that it it there's not to be a substitution of judgment substitution of discretion there's clearly nothing here that is arbitrary or capricious with respect to the to the discretion that was exercised with the opportunity that was given the brief extensions that were allowed  there simply isn't and it would require truly a mere substitution of judgment which this court has admonished many times is not supposed to happen at this level or below and so one last thing just very quickly because it was said specifically as there was a suggestion that what was that what was critical about this was this submission by alston well in response to the discussion of this about notifying fable city council about the actual requirements of the solicitation and it was said again as it was misled in the briefs that that specifically be oki asked that it be communicated to the city council and that they were expecting and requiring a response from city council and we addressed on page seventeen of our brief and footnote to the exact language from the record and in fact there was no such requirement or request what was requested was that that  provide documentation of communication to the appropriate officials slask proper authority evidencing that they have been notified of the requirements as stated in the statement work at settlement and in fact that is what was done you are recommendation who presented it who issued the letter mr withers established the it's very clear from the ordinance that there is a delegation of authority down to the city manager and in fact through the planning and zoning department so you truly would be asked to find that there any abuse of discretion here whether there was any error in the determination of the facts by the lower court you would be asking just speculate wildly on three critical matters which i don't think would be  i'm just to make a clarification of a point that both counsels made previously they both indicated that also will have to be opium for me this is not th simply isn't the case the record shows that also looks did not even contact the b o p s even tell them what's going on until after that sixty day period had already expired three days after the fact raise the continued development issue in its original briefs at page i believe nineteen and twenty i believe it was we did cite two cases regarding disparate treatment on p discussion notice indicated the proper of that they wanted an indication from the proper officials in proper authority that they were aware that again that's not mr herman that's the city council