Drawing of Lots in Public Procurement 2026

Drawing of lots in public procurement: decision by lot in the event of tied bids – requirements, conduct and documentation obligations.

Definition: The drawing of lots is a random procedure in public procurement for deciding between equally ranked bids where all other award criteria have produced a tie and the contracting authority cannot make any further differentiation between the remaining bids.

Last updated: January 2026 · Legal basis: § 127 (4) GWB, § 69 (3) VgV, § 130 (5) BVergG 2018

What is the drawing of lots in public procurement?

The drawing of lots is the "last resort" permitted under public procurement law where, after applying all defined award criteria, two or more bids are entirely equivalent and no further substantive differentiation is possible. It is an exceptional decision that is permitted only where no other means of identifying the most economically advantageous tender remains. The drawing of lots is expressly not the preferred instrument of bid evaluation – on the contrary, contracting authorities should design their award criteria in such a way that the drawing of lots is, as far as possible, avoided.

Requirements for the drawing of lots

The drawing of lots is permitted only if cumulative requirements are met.

The following are required:

Application of all award criteria announced in advance with their intended weighting
Complete tie between at least two bids after evaluation
No further possibility of substantive differentiation

The drawing of lots is impermissible where the contracting authority has not yet exhausted all award criteria or where individual criteria were not announced in advance in the procurement documents.

Legal basis

The drawing of lots is expressly regulated by statute in both Germany and Austria.

Germany: § 69 (3) VgV (service and supply contracts); § 16d (4) VOB/A (works)
Austria: § 130 (5) BVergG 2018

Conduct of the drawing of lots

The drawing of lots must be conducted in a transparent, traceable manner and fairly for all bidders concerned.

Requirements for conduct:

Written documentation of the tie before the draw
Possibility of attendance by the bidders concerned (recommended, although not mandatory)
Minuted recording of the procedure and the result
Retention of the documentation as part of the procurement file

The lot can be drawn physically (e.g. drawing slips from a container) or via a neutral electronic random system.

Distinction: drawing of lots vs. division into lots

The drawing of lots to decide a tie must be strictly distinguished from division into lots, which refers to the splitting of a contract into trade and partial lots.

Term	Meaning
Drawing of lots	Random decision in the event of a tied bid
Division into lots	Structural splitting of the contract into lots
Award by lots	Separate award of individual lots

Avoiding the drawing of lots

Through careful design of the award criteria, contracting authorities should ensure that a drawing of lots is, as far as possible, not required.

Measures for avoidance:

Sufficiently differentiated award criteria with clear weighting
Use of sub-criteria allowing finer gradation
Consideration of qualitative factors (e.g. quality concept, reference projects) alongside price

FAQ

Can affected bidders challenge the drawing of lots? Yes, if they take the view that no genuine tie existed or the drawing of lots was conducted with formal errors.

Must the contracting authority announce the possibility of a drawing of lots in advance? An express advance announcement is not strictly required, as the drawing of lots is regulated by statute. A reference in the procurement documents is, however, advisable.

Last updated: January 2026 All information provided without guarantee. For legally binding advice, please consult a law firm specialising in public procurement law.