The Yukon Court of Appeal has opted not to rule on whether a bid for tender submitted by P.S. Sidhu Trucking Ltd. was late, instead dismissing the Whitehorse company’s appeal as moot.

Sidhu had appealed a 2013 lower-court ruling that its bid for the Yukon government’s Tatchun Creek Bridge replacement project was not on time. The deadline was 4 p.m. – the same time the company resubmitted its bid.

The court heard the appeal in Whitehorse last November and released its decision last Friday.

“This appeal is moot because the contract was awarded (to another construction company) and the work undertaken,” Justice Edward Chiasson wrote on behalf of the three-judge panel.

Back in 2013, a Sidhu representative submitted a bid at 3:59 p.m. for the bridge project north of Carmacks.

He then wished to make a change to it, and a staff member at the government’s procurement centre told him bids would be accepted until the clock ticked 4:01 p.m.

So he asked for the bid back, made his change, and resubmitted it at 4 p.m.

Sidhu’s bid was the lowest, at $4.2 million.

When B.C.-based CMF Construction, the company with the second-lowest bid, questioned the timing of its competitor’s submission, the territorial government brought the matter to the Yukon Supreme Court, seeking clarification.

Justice Ron Veale ruled that Sidhu was indeed late. The government awarded the contract to CMF, and Sidhu subsequently appealed.

The local company has also filed a lawsuit against the government for breach of contract.

The appeal court found that Veale shouldn’t have ruled on the matter at all – the government should have relied on its lawyers, not the courts, to determine whether Sidhu’s bid was late.

The process was “fraught with peril from the outset,” writes Chiasson.

It was likely that regardless of how Veale ruled, there would be an appeal – either by Sidhu or CMF. His decision exposed the Yukon government to further legal proceedings, as well as a lawsuit, for following the court’s directions.

“The advisory opinion should not have been provided ... In my view, this raised circumstances akin to judicial embarrassment,” the appeal judges’ decision states.

This is when “judicial proceedings lead to inconsistent findings.”

Although the judges acknowledged the timeliness of Sidhu’s bid is relevant to its breach-of-contract lawsuit, they would not weigh in on the issue.

“To do so risks a result akin to judicial embarrassment, in which Yukon has the potential to face damages for following an order of the court,” Chiasson writes.