FAR 14.408-6—Equal low bids.
Plain-English Summary
FAR 14.408-6 explains how a contracting officer must resolve equal low bids in sealed bidding when two or more bids are tied in all respects. It establishes a mandatory order of priority: first, small business concerns that are also labor surplus area concerns; second, other small business concerns; and third, other business concerns. If the tie still cannot be broken after applying those priorities, the contracting officer must use a drawing by lot limited to the remaining equally eligible bidders. The section also requires procedural safeguards for the drawing, including an opportunity for bidders to attend if time permits, at least three witnesses, and documentation in the contract file of the witnesses and the person supervising the drawing. Finally, when award is made using these tie-breaking priorities, the contracting officer must include a written agreement in the contract requiring the contractor to perform, or cause performance to be performed, in accordance with the circumstances that justified the priority used. In practice, this section ensures fairness, transparency, and a defensible record when sealed bids are identical and the government must choose among them.
Key Rules
Priority order controls
When low bids are equal in all respects, award must follow the FAR’s priority sequence: first to a small business concern that is also a labor surplus area concern, then to another small business concern, and then to other business concerns. The contracting officer may not skip this order or use another method unless the regulation allows it.
Use drawing by lot if needed
If two or more bidders remain equally eligible after applying the priority rules, the award must be decided by a drawing by lot limited to those bidders. This is the required tie-breaker when the priority categories do not produce a single eligible awardee.
Allow bidder attendance if possible
If time permits, the bidders involved should be given an opportunity to attend the drawing. This helps support openness and confidence in the fairness of the process, but the regulation conditions attendance on available time.
Require witnesses and recordkeeping
The drawing must be witnessed by at least three persons, and the contract file must identify the names and addresses of the witnesses and the person supervising the drawing. This documentation is essential to show the award decision was made properly.
Include written performance agreement
When award is made using the priority rules in this section, the contracting officer must include a written agreement in the contract stating that the contractor will perform, or cause performance to be performed, in accordance with the circumstances that justified the priority used. This ties the award to the factual basis for the preference or priority.
Responsibilities
Contracting Officer
Apply the priority order for equal low bids, determine whether any bidder qualifies under the labor surplus area and small business priorities, and use a drawing by lot if the tie remains. The contracting officer must also arrange the drawing, ensure the required witnesses and documentation are present, and include the required written agreement in the contract when the award is made under this section.
Bidders
If invited and time permits, bidders may attend the drawing by lot. Bidders that receive award under the priority rules must be prepared to perform in accordance with the circumstances supporting the priority used.
Witnesses
At least three persons must witness the drawing by lot and their names and addresses must be recorded in the contract file. Their role is to provide independent confirmation that the drawing was conducted properly.
Supervising Official
A person must supervise the drawing by lot, and that person’s name and address must be placed in the contract file. The supervisor ensures the drawing is conducted fairly and in accordance with the regulation.
Agency/Contract File Custodian
Maintain a complete record of the tie-breaking process, including the basis for the priority determination, the drawing details, and the identities of the witnesses and supervising official.
Practical Implications
Equal low bids are not resolved by discretion; the contracting officer must follow the exact priority sequence and then use a drawing if necessary.
The labor surplus area and small business status of bidders can directly affect award outcome, so those statuses must be verified carefully before the tie is broken.
A drawing by lot is a formal procurement event, not an informal coin toss; poor documentation or too few witnesses can undermine the award record.
If time is tight, bidder attendance at the drawing may not be practical, but the file still must show the required witnesses and supervisor.
The written agreement requirement means the contract should reflect the factual basis for the priority used, so contracting officers should not treat the tie-break as a purely administrative step.
Official Regulatory Text
(a) Contracts shall be awarded in the following order of priority when two or more low bids are equal in all respects: (1) Small business concerns that are also labor surplus area concerns. (2) Other small business concerns. (3) Other business concerns. (b) If two or more bidders still remain equally eligible after application of paragraph (a) of this section, award shall be made by a drawing by lot limited to those bidders. If time permits, the bidders involved shall be given an opportunity to attend the drawing. The drawing shall be witnessed by at least three persons, and the contract file shall contain the names and addresses of the witnesses and the person supervising the drawing. (c) When an award is to be made by using the priorities under this 14.408-6 , the contracting officer shall include a written agreement in the contract that the contractor will perform, or cause to be performed, the contract in accordance with the circumstances justifying the priority used to break the tie or select bids for a drawing by lot.