In a tender process, a counter-offer proposing a performance bond in place of a bank guarantee is not accepted by the offeree's silence, even where the offeree proceeds on the assumption that a bank guarantee was agreed, where the parties had previously treated the distinction as commercially significant. A council's resolution that bank guarantees 'be amended' qualifies its acceptance of a tender and prevents correspondence of offer and acceptance where the tenderer has not agreed to the amendment. When a party enters into a contract, it does not necessarily make any representation as to its subjective understanding of the content of its obligations; an acknowledgement of understanding and acceptance of tender terms says nothing about the party's understanding of the scope and content of the obligations it is undertaking.
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