i'm going to get to that this is what he said there's a section of our solicitation that documents that specifically deal with requirements for a bit and in that section there's here it's not just simply determining if there's a certain number of documents containing the biggest prize is that accurate and he says no there is some judgment involved in terms of evaluating the documents on the information that is it that is the entire description of the extent of the is and so forth and but even based on the one i was alone there is some judgment down is hardly a ringing endorsement of the high level managerial discretion of these employees  rules exercise managerial discussion in fact some of these cases involve completely mechanical process see that involves zero discretion zero discretion on the there there are guidelines that prescribe how they do their jobs where they they are the ones though who effectively make the decisions you know the majority of procurement decisions come about through the competitive  now there is you know it's a competitive bidding process but it's not merely a matter of identifying the lowest bidder dollar wise once the apparent lowest bidder is designated then it's the responsibility of these employees to select the lowest responsible better and that's where a lot of discretion comes in because as mr whitaker testified there are numerous factors that go into meeting that  you know making that that determination and the factors that have to be considered in that are inherently was the call for the exercise of judgment and discretion on the case and once they actually save your judgment specialist as to the law is responsible better and then that that she prepared an officer agrees with that so he really is this is senior german officers are the ones who are making the determination of the services for the various user departments and they are the ones who are carrying that out and and there's really there's no dispute about on that point that they are the effective decision makers the issue is really about what goes into their decision making process and whether it's broke and my present counsel and invention things like tabulations and templates and calculations suggesting that it sort of a road process that's covered by these and there are portions of the competitive bidding process that are covered in that way that a parent below is a parent better obviously you know comes down to dollar figures there are some things that i ordinance or are factored in in a numerical way you know minority business enterprises there might be a certain percentage for those things but when it comes to that the bettors responsibility and factors like the betters you know financial capacity and responsibility their record of past performance what the city's dealings with betters are and whether you know that they appear that they can carry the job out in a timely testified that they at the senior permit specialists they that they have something like thirty factors to consider in making these determinations of the lowest responsible better that the recommendations are nearly always accepted and that it is a matter that there is judgment that the senior specialists have to exercise in making decisions and the absence of evidence that the l j noted that the union ha seized on was the absence of evidence that they that the specialists were constrained in some way in how they applied these various factors when inherent in these types of factors is is judgment discretion and it's going to vary from case to case because the types of factors are things like the adequacy of the equipment there are some cases where that matters a lot and there are going to be cases of instances types of purchasing decisions that don't involve equipment at all there will be instances where time is of the essence where another step in a project depends on something getting completed and that's going to be a paramount consideration and you know those decisions are left to the human specialists to make so the absence of evidence in this case isn't that the employees exercise discretion of the exercise judgment it's merely this thing that the union seized on from the l g s decision saying that there was that they have to consider but they're you know it's not a lot of these these judgments are they're not going to be obvious up or down decisions or does this you know contractor to they have an adequate workforce do they have adequate  are they financially capable so that they can you know complete the st stage of the project before they get a payment from the city you know these are things that the and the senior permit specialist get experience dealing with these contractors to have you know a good sense of is this is this the best better to to go forward on this project and in that sense again they are carrying out the mission of the procurement department compare met and you know the test for whether an employee exercises executive a managerial functions includes things like you know where their job encompasses a major part of the agency's mission and basically you know that the agency the agency here the department of  runs through these employees you know another factor is whether an employee negotiates on behalf of the employer there was also testimony that once a bid is accepted you know they may negotiate terms with the better sometimes they're sweet you need to be done to the contracts you know and generally assuring that the department runs effectively and that's what they that's what they do by working on behalf of the department by trying this out i just want to touch very briefly on the argument that the job duties of these of the senior permit specialists but you know that there that the notion that they're the same as other procurement specialists who are in the bargaining unit that for one thing the argument wasn't actually advanced in the brief on appeal so we would argue that it's waived it was it was raised below the testimony was merely that their job duties are the same in the bidding process there wasn't any other aberration on that what it means the time they are that they really do the same things over over all but you know moreover that they l j recognize there's not evidence in the record about what the procurement specialist duties are there's nothing pretty loose of about the fact or any testimony and how they do that there wasn't testimony however there was evidence i'm page thirty and there were a variety of factors that yes cases must consider including financial capacity of past performance on  the l j was that they were engaging in a very collaborative environment with multiple levels of review in which there were individuals who actually were directing our decision was made and the board agreed with the  someone does not have discretion or lacks some sort of managerial discretion and nd that an employer is not required to provide specific examples of managerial duties  more specific examples of course are hopeful but they're not necessary so long as the evidence accurately describes what an employee einstein was authorized to do that sufficient here we differ from the county of will testimony was that he asked guesses use their own judgments when evaluating the big documents and information weighing between twenty to thirty factors to make a determination this wasn't a checkbox a situation the very nature of playing factor shows  transcript the question was they have no role in negotiating prices between the client and the vendor question mark answered in the bidding process and the bidding process was the only process that was determined to be  of evidence in the record and that's why the city has not met its burden and i agree that if it were a managerial decision what these s employees do in producing this tabulation then yes they're almost always expected that that's what they have at st but the evidence is not indicate that they used managerial discretion in producing the