Six lawyers spent two and a half hours in territorial court Thursday arguing over seconds.
At issue is whether or not P.S. Sidhu Trucking Ltd. made the deadline on a bid for the contract to replace the Tatchun Creek Bridge.
The outcome of the hearing will have real consequences. If Justice Ron Veale finds that Sidhu missed the deadline, the contract, worth more that $4 million, will go instead to CMF Construction Ltd.
The court heard that Ruben Bicudo arrived at the Yukon government’s tender office at 3:55 p.m. on Aug. 15, five minutes before the deadline. He was submitting a bid on behalf of Sidhu Trucking.
He was trying to add up the unit prices in the bid to come up with the final total, but his calculator broke.
Staff at the office told him that they could add up the total so long as the rest of the information was complete. Bicudo sealed the bid and a staff member time-stamped it at 3:59.
He then asked for the sealed bid back.
The staff member checked the time by stamping a scrap of paper.
Finding it to be 4:00, she handed the bid back to Bicudo.
He opened it, “darkened a zero,” resealed it, and returned it to the staff, who then stamped it with the time 4:00, according to documents before the court.
One of the lawyers interpreted “darken a zero” to mean that he found the digit to be too light, and retraced it.
It later came up that the clock used to stamp the completed bids may be up to 90 seconds late, meaning that a bid marked with 4:00 would actually be past the deadline.
However, lawyers on all sides agreed that the only time that matters is the one displayed by that clock in that office, and the “real” time would not be an issue in this case.
But the bid from Sidhu Trucking was still late, argued lawyers for CMF Construction.
Instructions to bidders on this project indicated that bids must be submitted before the deadline, and that any submitted after the deadline would not be considered.
That means that bids would have to be marked no later than 3:59 to be considered, they argued.
In his opening statements, Justice Ron Veale said that he found these instructions “explicitly clear,” but that he would be open to be convinced otherwise.
Lawyers for Sidhu Trucking tried to do just that.
Contractors are given conflicting information about whether bids are accepted until the clock strikes 4:00 or 4:01, the court heard.
Information in other places, including newspaper advertisements and the government’s website for their tender management system, suggested that bids submitted at the 4:00 deadline would be acceptable.
And government staff were also working under that assumption, as evidenced by written affidavits and by the fact that the sealed bid was returned to Bicudo at 4:00.
Lawyers for the Yukon government argued that the case is not clear one way or the other.
If it were, the government would have made a ruling and not bothered the court with the matter, the court heard.
Lawyers found only two similar cases across Canada, and they point in opposite directions.
A B.C. court found that bids submitted within the 59 seconds following the stated deadline would not be accepted.
But an Ontario judge argued that if there is confusion about the deadline, a strict interpretation should not rule. In that case, the 59 seconds following the stated time was ruled to be acceptable.
But, Justice Veale pointed out, language indicating that bids had to be submitted “before” the deadline was not used in either of those cases.
A government lawyer pointed out that instructions indicating that bids submitted before the deadline will be considered and bids submitted after the deadline won’t be considered still leaves the question open of what happens to bids submitted on the deadline, when the clock reads precisely 4:00.
Justice Veale was not convinced.
Instructions saying that bids must be submitted before 4:00 and not after 4:00 “wouldn’t confuse anyone except a lawyer,” said Veale.
He will make a ruling today at four.
Contact Jacqueline Ronson at
jronson@yukon-news.com