No asterisk, still substantial: Council of State confirms safety-related holster specs are inherently essential
Radar argued that its holster bid could not be irregular because the disputed specifications 4.2.20 and 4.3.18 bore no asterisk, but the 6th chamber held that the explicit link to "a secure grip on the weapon" made the specs inherently essential, even without a formal nullity sanction.
What happened?
The Federal Police launched a four-year framework agreement (max. 6,682,121.50 € incl. VAT) for duty belts and holsters for the Integrated Police and Defence in summer 2022. Lot 2 (holster, with a thigh and a belt variant) attracted five bids. On 4 May 2023 the Italian firm Radar Leather Division saw its offer declared substantially irregular and lot 2 awarded to SA United Security Group. The stated reason: the release button was positioned "too high" and "too far forward" – especially for people with larger hands – preventing a definitive grip on the weapon during extraction and requiring repositioning before aiming. Radar challenged this under the urgent suspension procedure, centring its defence on one technical-legal point: the "important preliminary remarks" of annex B explicitly stated that "all points marked with an asterisk (*) are essential conditions under penalty of nullity of the bid" – and specifications 4.2.20 and 4.3.18 bore no asterisk. Radar additionally pointed out that it had been supplying the same holsters to Belgian and European police services for years, had won a similar contract in 2017 with identical specifications without issues, and that on the very day of the contested decision the Federal Police had asked whether Radar could supply "white holsters" for a unit at the Royal Palace. The 6th chamber rejected each of these arguments. On the merits: the specs explicitly tie a perfect grip during extraction to "adjusting the shot" and apply to a contract concerning firearms use – making them essential by their very nature, even without an asterisk. Second: the specs are placed under "ease of use and safety", which is also an award criterion, but the preliminary remarks require the bidder to confirm "point by point each technical specification" – the specs and sub-criteria measure different things. Third: an internal prevention report of 11 October 2017 on Smith&Wesson MP9 holsters already noted that "the bidder's model slows down the correct and definitive grip on the weapon"; and an 8 October 2020 email from the logistics directorate to Radar itself, years before the contract, stated that "the (first) grip on the pistol must be fixed/definitive". The legitimate expectations argument collapsed: even if Radar had expectations, the established "safety risk" was a serious reason to depart from them. At the hearing, a Federal Police shooting instructor gave a demonstration, and even the three videos Radar showed during the hearing did not contradict the factual findings according to the chamber – in two of the three, the first locking system had been deactivated. Urgent suspension dismissed, Radar bears all costs (994 €).
Why does this matter?
This judgment is a significant signal for anyone preparing or evaluating bids for contracts with a safety or risk component. The asterisk convention that many Belgian tender documents use (* = substantial, no asterisk = indicative) is not an automatic escape hatch when the specification in question is inherently tied to the safe performance of the contract. For holsters carrying duty weapons, for protective equipment, for medical devices, for any contract where proper performance depends on technical margins – a specification can become essential by its very nature. A second, less often discussed lesson: a contracting authority is allowed to raise its safety standards between two procurements, even if it bought exactly the same product from the same supplier years earlier ("what was acceptable then may no longer be acceptable today"). And third: internal correspondence history matters. The October 2020 email and the October 2017 prevention report that Radar "encountered" in the administrative file formed the decisive block of the dismissal – an authority that systematically documents its feedback can defend itself far more effectively in later litigation.
The lesson
For contracting authorities: use the asterisk system consistently, but know that the Council of State may qualify specs as substantial even without an asterisk when they relate to safety or the core purpose of the contract. Consider stating in the preliminary remarks that safety-related specs are minimum requirements even without an asterisk. Document feedback to suppliers: an email or internal report years before the tender may later make the difference between a defensible and an untenable exclusion. For bidders: a previously identical award offers no protection against a stricter assessment of the same specs in a new tender – do not assume that "what was compliant yesterday stays compliant". Check at every new tender whether existing feedback from the authority (internal reports, emails, debriefings) signals that something needs adjustment. Do not rely solely on the asterisk argument: if the spec relates to safety or usability, the Council will weigh it on its merits.
Ask yourself
What am I basing the claim on that these technical specs are not a substantial requirement – only the absence of an asterisk, or also a reasonable reading of what the authority intends to guarantee with this contract?
About this database
The Council of State (Raad van State / Conseil d'État) is Belgium's supreme administrative court. In disputes over public procurement — from contract awards to tenderer exclusions — the Council of State is the final arbiter. The rulings in this database are summarised by TenderWolf in plain language, with practical lessons for tenderers and contracting authorities. View all rulings →