whether this appeal is moot since the two year suspension that chester process of killing expired in june twenty third changed this quite should consider this appeal under two recognized exceptions suspension is an administrative decision that is subject to judicial review in the first instance and it's also about what it means to participate in an apprenticeship program in order to be considered  don't see it's a nonprofit labor management organization in which this organization took the position that chester process interpretation of what it means to participate in an apprenticeship program was consistent with our understanding and in that you were member of an apprenticeship program and did not have to have active participation at the time or have somebody enroll general public in that it would allow there to be a larger pool of qualified bidders to bid on state projects and review now even though the suspension has expired would provide some lack of integrity and honesty and it's it's something that now has sort of tainted its record it wants the suspension reversed so this could have backed its ability to get contracts in the future  consider the merits because the truck or believe that this was the suspension was an act of executive discretion and this issue can be considered de novo has it's a question of  law when it's the extent to which an agency decision this review up and here the truck court equated the suspension with a decision to award or deny a contract that language this is a court finds the authority to grant a state contract is a discretionary act bested in the executive branch of the government the plaintiff has no right to a state contract the court will not substitute its judgment for that of the executive state agency and i that makes the same characterization it says in its brief that if they call the suspension a decision not to award a contract for  suspensions can only be imposed for the causes that are identified in the code and in accordance with procedures that are set forth in the code they must be based on adequate evidence that the contractor engaged in con about the code and it also provides some general guidelines as to how to assess you know what is adequate evidence and in addition to their it being subject to certain standards the c p s decision consider the case on the merits i'll turn it to lee this court can review the merits if it chooses to do so if this court does review the merits we believe that a clearly erroneous standard applies because the issues involved mix questions of law and fact as to what it means to participate in a bit in an apprenticeship program and then having to program the a b c illinois and identifies the trades for which this program it's registered which includes heavy equipment operators but it does not include a separate tray that labor ers in these documents chester brass did not represented represent that this program included the trade of labor labor early that it would be used in laborers on this project  and that at the hearing it did offer documents from a b c illinois that describes the program that it has for heavy equipment up operators and that program is file as some of the other programs include a sort of a basic skill set which would encompass some of the things that laborers do like work with simple tools and that sort of thing so it's possible that you could have somebody who's in a patient in an apprenticeship program it didn't introduce any evidence at the hearing as to the work that was actually performed on the project so for that reason alone i could not establish alleged at chester press misrepresented it's hard to suppression in the apprenticeship program for heavy equipment operators and chester brass has consistently stated in the documents submit it with it in its bid and there is some later correspondence from counsel for chester bras it's stating that that it was relying on its membership in a b c illinois as evidence that this vote was its participation in the apprenticeship program it never stated that it actually had somebody enrolled or that it actually had a graduate and this is consistent with the understanding of particular trade if you're a smaller company let's say you have ten heavy equipment operators they may be experienced you may not have the need to send somebody to an apprenticeship program so this made a material misrepresentation because it's understanding of the term participation didn't comport with chester mass understanding and the problem with that is they didn't have any sort of rule or definition of what participate means and they never used to have they're saying this is not a growth that they're just applying the statute to the facts but what they really did was create a standard that they apply in different cases to and if there was testimony from people at the council as to how their understanding developed and how they apply this as their meaning to individual cases but it never went through the grill making process which would allow some activity for public comment to bring up  a maybe you don't need to have anybody change at any particular time because this was based on an invalid rule that was never i'm looking at it the suspension can't should be that's correct and we believe that it's a clearly erroneous standard at this point because there is no evidence to support an actual the work actually perform project and that there was a change in the payroll for example they had labeled couple of people as laborers and then went back and change that and they were working on two different sites in the area and had laborers working on those projects and so but that's i think that the hearing officer took from that that there was some attempt to cover up and i'm not sure this decision could be apprenticeship program and here in this assumes again and this is more of a question of what participate means there's nothing to suggest that even it's a heavy equipment operator was doing something that a labor might do that that wasn't covered under the heavy equipment operator had to ship but that they have anybody who rolled in there actually rolled over them being a member there was no there was no membership in the in an organization that provided an apprenticeship program or a labor but there's also no evidence that chester prosperous using anybody in the trade of la which might include some like traffic control and perhaps this was a job that didn't require big operators to have to close off or grow or when you say there was no evidence there was evidence that they could pay two were paid as heavy equipment operators that this came up and this was for purposes of the prevailing wage act requirements that they have to lie about that was corrected after it was discovered they had produced a pay actual pay check which i did medic couldn't be altered or one of the employees the other employees they didn't have the pay checks because they were paid by direct deposit so there was a record well then isn't everything in the business in a neat bit will be enrolled in such a program or choosing to enroll in search of program to satisfy certain criteria for vote if you look closely at those exceptions they just really confirm that they are each fact intensive issues for as i think came across here in the prior argument that the trust or process probably just disputes the c p s decision on that you know their use of labor is as they characterize it as if there is no evidence in the record at all to support that they use labor's that is we disagree that there is evidence that the evidence has to do with chester brosnan's own documents and identifying their workers as laborers these other cases  specifically whether or not their findings involve and furthermore in fact the the secretary of state had denied the license and explicitly denied license on the basis of that prior education so there wasn't any speculation in that that they're now free the special was given for a two year period it's expired there is no reason to think that it's going to prevent them from between them getting in the future or from winning in a work in the future but about their basic argument though that the co cause to support the suspension correct your honor he just provided it does it does require cars ago it's not a cost and it's been developed in the law like oh like the just cause gender for employment and that it's really it's it is left to the discretion it's left to  or emissions categories of act so of emissions which support the suspension and test process never argued that any one of them would be sufficient support to your suspension so if the court even were fined for instance for some reason they disagreed with whether or not misrepresentations regarding the use of letters and then there's also the findings that the main material misrepresentations regarding the participation in the program for their heavy equipment operators with regard to the use of labors on the ems project  here and that case in those cases they identify one of them half of their employees as laborers the other one there are places laborers and furthermore actually there's the evidence of record is there that documentation on the federally funded projects the specific employees who are it benefits waivers were the same were some of the employees who were on the adams project including two of the employees who were down a flight of that september two thousand and ten payroll as laborers based families the the the only kind of evidence or that they came forward to say they didn't use it only further support that really further support these liberals said if they tried to argue that hey just because we say labor's in our payroll for purposes of the prevailing we checked that doesn't mean that just shows it route seven or whichever statute you're working under it's the same tasks parent they try to make the argument that there are some counties a minority counties which actually create a separate vision of craft for the really prevailing wage act of  traffic safety control but they never argue that that's actually true p m s project which is of adams county which is where there is a project which here and even if it did it wouldn't matter when showed it was that when you all that would show is that there was another that there were other still show that when you when you identify under the prevailing wage act that the kinds of tasks you're looking at is the tests which everyone wants of waivers there's no evidence that they're using it to show tasks which hey there might have been the tasks that our people might be doing on the project might have been covered in the heavy equipment operator program which we which they claim to a participated in how were they put forward no evidence of the tasks that were being used indeed the testimony by a b c s president a b c was the sponsorship organization which runs the program the training program for the equipment operators she did not know how the training in her in her program for operators would compare to us deal approved program for labors she had no idea who had the burden of proof in the suspension iraq had had the burden of proof to show that but if it still that that's the ultimate burden of proof showing u meeting their what evidence to show that there was a violation of the act or mission but still once there was a problem fisher case they had it even if they didn't have the burden of proof they didn't have before any evidence showing that they actually participated  approach in the program they simply said it could theoretically there could be a program out there that would cover the same kinds of exams kinds of tasks i'm the program that was not a labor program that would cover the same kinds of tasks as a the participation requirement by having their employees pre registered to go on the program for operators now the c p o rejected their argument that it because they participated by merely being a member in the sponsorship their reading and their application of responsible better promote program you you could happen in this case did have you could have been a construction company which never sends anybody into the training program i see my time's for that  imposing suspensions also with respect to the work that was being performed at the adams county site i doubt it's attempting to shift the burden to the contractor to prove that it it's sort of working backwards instead it's proving that we made some sort of misrepresentation as to what was actually done there assuming that we that there we were using laborers and that we have to prove that we were not using laborers and without any evidence of what was actually being perfect what kind of work with being performed by the chester process employees  which they can't prove that we made a misrepresentation as to our participation in an apprenticeship program for those type of workers finally councilman made a statement about a letter that was attached to actual enrollment in the program but then saying some of these pre registered wouldn't be a misrepresentation if it doesn't mean participation and less anyone has any further