I see your point Radar, but we did advise we couldnt make the level, hence the offer to orbit. We kept the controller informed of our flight status, and were told to continue even though we said we wouldnt reach the assigned level. Looking back on it i admit it was a stupid thing to do, to turn the Transponder to mode "A". Actually, we didnt break any rules as the controller told us to continue, knowing we wouldnt make the level in time.