individual surely it seemed like that's the issue in the case is that you really have any discretion where what you were by the requirement of the applicable for provisions to reject the proffered play devan after that namely a pil hole understand your honor but i think your discretion is broader than that in determining assuras welch responsibility it also web a but a far doesn't get even with general consideration to financial responsibility the for with the whole lot of think i would have to disagree personal property that specifically stated to be an acceptable it's not open ended all personal property it's defined by examples in the regulations namely jewelry first antiques ok at a value that you can you can track by the minute your honor first of all that the agency did not rely on personal property when they rejected five acceptable assets they would be stated is acceptable assets that's not the way the regulations rigor it's written the way responsibility type regulations should be written which is to give the contracting officer  the asset is sufficient to support a bond so they can then accept the low bid in addition your honor even if that asset was determined to be unacceptable by the contracting officer the regulations further provide that owns a pile call and then needed been the reason that the contracting officer reacted are the contracting officers reaction was not proper the first thing she was under a misapprehension of the regulations believing that she couldn't be accepted a substitute das and she said to the contractor it's not a law well the farmer specifically lost and she said i can't accept any support i can't even entertain any information of the type that you're talking about after the big goes substitute of the collateral the nature of the whole market thing that it would help us to figure out if you know the real injustice that well run or the way this not formally present a substitute asset the contracting officer why why was that cut off i don't understand the contract an officer said the far far did not allow for substitution of assets in her view any support for this bond be untimely after the bid was submitted and that confuses responsibility which is can be conducted after the  is it in the new that you have to submit documentation ok the documentation that was submitted by the surety was a separate documentation called certificate a pledge of assets under the order under this i have to be the world was if the contracting officer which matches by the way that year as well for twenty years is if the contract and house are as questions after receiving this documentation they ask and if the contractor sure doesn't provide sufficient support then they're out and that's whe sure comes back and then we'll say we're wrong about the bar and here is the substitution we're prepared to offer instead but we're back to the cool and we argue about why the cool should be accepted n proper least an argument as to why but the contracting officers interpretation on the fly on the phone of the car is wrong in that you are entitled to substitution and here's the substitution all that argument ended up being and what the contracting officer said if you look at the record of what the contracting officer said is consistent with what she said on phone everything centime me after that good bond comes in and i can reject it right now and that's not the rule table nothing has been proffered by scarborough in the air your honor is that that contracting officer slammed the door shut on that process now the contracting officer has to have some responsibility for that and what's happened looking at one thing i would say is the g a o in this case the first told us this the argument that this personal property and then after we provided information to them saying what what do you mean personal property look at the structure of the regulation we came back with another decision by the g a o that didn't even mention the personal property and focused in on this escrow corner and the escrow requirement itself again you know the government says this is an absolute rule it's did court couldn't come in and say this is a reasonable exercise of your discretion the administrative agency doing the business judgment ensured financial responsibility terminations acting as a jury they assess the facts they assess whether the current system is they don't want every decision to go to her superior they authorized people at these levels to make these decisions if you're if you feel you're losing a major bid of course to be constantly going to the the way it's set up is that there are two forms they're supposed to be documentation provided with the former if the documentation is not sufficient the contracting officer is to ask questions and the reason they do this reserve the low bid and save the taxpayer dollars documented it was documented a sworn affidavit and it said all the things that you're supposed to swear to in that form ok the only thing was missing was details of an escrow account and if we get into that again are subject and special contracting officers contracting a ship could put that coal in a separate area and have an escrow asian in charge they could pass for a bill of sale for all that coal to be put in a bank with an exploration in charge of it hypothetical that i guess it's mr ehlers that wrote the letter on behalf of the law firm has been back been a friend of the secretary of transportation and called up the secretary of transportation and said you've got a rogue c e o down there can you do at this somewhat link gate as a practical matter what did you ask you were good preparation costs to work or what i think we have alternatives first of all i believe that the work is not far enough yet it still wouldn't be to the government's advantage to have us complete the contract really are and for less money and then alternatively we have costs that were sunk into the big persian costs perforation costs and so forth but i think  twenty eight dash eleven which provides the what the pledge of assets the format it should be and it states that offer worst shall attain for each person acting as an individual surety on a big guarantee or bi escrow account containing cash certificates of deposit commercial or government securities or other assets listed in far twenty eight point two zero three dash two indented excludes government securities and book entry form which cannot be placed into an stated that the escrow account requirement is the it's the first thing that should be looked at and if the assoc can't be placed into an account then it's simply not an acceptable asset in any event but that makes sense if the that's what the farmers tractors consider reasonable requirement to protect themselves from the possibility of not being able to recover not being able to get the individual certain to sell a pilot hole on his own property or  account including one of the assets listed in twenty eight two of three dash two they can't exist separately they they can't be read separately in the way the tiptop is urging and the list of personal property is clearly cut off should do now that they that they had to investigate the asset they had to investigate whether it actually had the value claimed and that's precisely why these changes were made to go you know pledged which are provided with the etc twenty eight normally he may request the surety to provide further information or documents and failure to provide that will be cause for objection  must proper in a formal way the can or should all the proper demonstration of the actual compliance with the requirement that would have been the answer correct then the answer she gave was wrong correct well no right your honor at  least according to mr haas he says there's no possibility of a substitution of assets at this point well your honor the well again even even if that was an error let me make sure it's not going to be even if thing let's o three dash for the surety is the one who can manifest willingness to offer a new asset the president of the better cannot make an offer and in fact that the statement that he is now or that the s is willing to provide cash is not actually what the declaration says it's not what mr scarborough the individual serious at any point he says i have other assets including cash which portion of the one point eight million is cash it could be a very small portion of the asset could be one that is not on the list of acceptable acids it could again be another pile of coal we don't have any idea as the court noted what this asset would have been and ask the agency to reconsider that there's no formal protest the appeal is the report i mean once the c e o has made a final decision at the well first of all it wasn't a final decision there's there is a agency protest case of penry spend the c e o of the better may provide additional information after an initial determination not responsibility and in that case the c e o considered that that information and decided hey they really are also also noted that it doesn't apply in a big protest situation because it's not the type of decision which is solely in the agencies are solely to delegated to the agency something like rule making or one issue that this court has concluded that the far is not the agency's regulation to have deference and in applying but i am but in addition chevron itself really would not apply policy and some other things there forget who articulated it this your group made the argument on the contrary that should apply to any exercise of discretion by an agency official who has  the exercise of expert discretion under the regime of the fall well in this particular case we are discussing interpretation of the regulations so that doesn't fall within  it within cherry in any event being a legal question and this several things were tough spot that's one of them right the other one is her conclusion that she for example had no freedom to do anything further the wouldn't be the reason that we would rely on to affirm the result as for the substitution issue regardless of the statement of reason there is as been no prejudice shown there's this would be a harmless error in this statement and the contracting officer heard her statement really hard work because because the regulation be triggered by an exercise of discretion sure parky making a roommate it doesn't matter in this case well to begin with the question of the regulatory interpretation of the far sections there is even even where the court to appears to be claiming that the last sentence of that paragraph which describes and speculative assets is the true reason and the only reason and that therefore the trucker made it clear error of fact even if that were applied submissions made to the g a o it's not even cold it has to be processed repugnance and equipment that the individual surely did not have and didn't have at the time they pledged coal they weren't going to get the permits or the escrow account was coral refuse or first of all when the government made their decision it was marketable coal coal refuse can be used for a lot of different things can be used in plants they use coal i understand energy plants they do it it's often process to get the highest value out of it the bottom line here though is that the government thought this was marketable coal just like bill they said it as a matter of law it can't be not acceptable assets as a whole section on acceptable assets what's the point if you only have certain accept less list and save it but instead they say this includes this includes which was the even seasoned trouper taishan at the time applicable they reap the problem with the documentation i agree but the one that was provided and in fact all of them or they were provided by the agency were not correct legal they were not correct were and the reason that they cut off the dialogue on a substitute assets wasn't correct the government admits that they say it's harmless or was harmless about it if the contracting off the contractor and the surety have been total don't bother because we consider it an acceptable house how can it possibly be harmless it was a harmful or all right thank you bot