Contract Formation and Award
From solicitation to binding contract
Formation requires an offer, acceptance, and consideration, but public procurement overlays statutory rules on that common-law core. Understand the difference between a responsive bid (conforming to material terms) and a responsible bidder (capable of performing). Both tests must be satisfied before award.
Know the instruments: invitations for bid typically lead to awards based on price to the lowest responsive, responsible bidder, while requests for proposals permit evaluation of qualitative factors and sometimes negotiation. Clarifications may resolve minor informalities without changing price or substance; discussions, by contrast, allow revisions and trigger obligations to treat offerors fairly. A material deviation that gives one offeror an advantage cannot be waived.
Traps
Questions love the word "minor." A bid missing a required signature may be curable; a bid that conditions price on a term the solicitation forbids is not. Another trap is treating responsibility as something cured by a low price; financial capacity and past performance stand on their own. Watch for scenarios where a contract is "awarded" before the protest period or required approvals; premature award is a classic defect. Also distinguish a mistake in bid (correctable only under narrow conditions) from a withdrawal after acceptance.
Worked example
Three bids arrive; the lowest omits an acknowledgment of an addendum that changed a delivery date. Because the addendum was material, the omission is material and cannot be waived; award to the next lowest responsive, responsible bidder. If the omitted addendum had no effect on price or scope, a clarification could cure it.