Public procurement in the defence and security sector in Belgium is governed by a specific legal regime, stemming from the Act of 13 August 2011 and its implementing Royal Decree of 23 January 2012, which transposes European Directive 2009/81/EC. This framework seeks to reconcile market openness with the protection of essential security interests and the reliability of economic operators. For companies active in this sensitive sector, mastering these rules is a prerequisite for market access.
1. A legal framework distinct from general public procurement law
Defense and security contracts do not fall under the classic public procurement rules. They are subject to an autonomous regime, applicable not only to military equipment but also to works, supplies and so-called “sensitive” services, in particular where they involve classified information. The first strategic reflex should be to verify whether the activity concerned falls within this specific scope, as the resulting procedural, contractual and organisational constraints flow directly from it.
2. Information security as a prerequisite
In this sector, technical competence alone is insufficient. The contracting authority may require tenderers to demonstrate their ability to protect, store and process classified information. In practice, obtaining national security clearances is often necessary, sometimes even before access is granted to the procurement documents.
3. Security of supply as a central issue
The State expects long-term industrial reliability from operators. Companies may be required to guarantee continuity of supply, including in the event of a crisis or a sudden increase in needs. This presupposes a controlled and transparent supply chain, as well as, when required by the contracting authority, the obligation to inform the authority of any significant change in the industrial organisation likely to affect its obligations towards it.
4. A selection-driven approach prior to the submission of bids
Unlike classic public procurement, the open procedure (where all economic operators interested to be awarded the contract can participate) is used only marginally. Given their inherently sensitive nature, defence and security contracts are predominantly awarded through restricted procedures, negotiated procedures with prior publication, or competitive dialogue (where only preselected operators can further submit an offer). The qualitative selection phase (candidature) is often decisive: without a robust file at this stage, the financial offer will not be examined under these latter procedures.
5. Defence-specific technical standards and controlled innovation
Technical specifications may refer either to civilian standards or to specific “defense” standards. Equivalent solutions are permitted, provided that proof of equivalence is supplied. For innovative companies, this represents a particularly attractive opportunity, but one that requires rigorous technical analysis and presentation already at the bidding stage.
6. Subcontracting and partnership strategy
To stimulate competition and market access, the contracting authority may require that part of the contract be subcontracted to third parties, within the limits provided for by the regulations (which may be up to 30% of the contract). The tenderers most likely to be awarded the contract will therefore often be those that have anticipated a consortium or partnership strategy, rather than responding to a public contract on their own.
7. Protection of trade secrets
Whereas classified information need to be processed and stored by bidders, the contracting authority is, on its part, legally obliged not to disclose confidential information communicated by tenderers, in particular technical, industrial or commercial secrets. This legal protection is essential to enable private companies to participate in competitive procedures without exposing their strategic know-how.
8. Reliability and reputation: decisive criteria
Beyond the classic grounds for exclusion (fraud, corruption), an operator may be excluded if it does not provide sufficient guarantees to safeguard the security of the State. In this context, compliance, internal governance and reputation become genuine economic assets.
9. Intellectual property: anticipate from the outset
Companies must factor into their pricing the costs related to exploitation licences or intellectual property rights necessary for the performance of the contract. This applies provided that the contracting authority has mentioned them in the procurement documents. Where companies hold such rights, they must disclose this and organise their contractual use by the contracting authority. A clear intellectual property strategy from the candidature stage helps to avoid subsequent disputes and secures the valorisation of intangible assets.
10. Market prospection: a strategic opportunity
Prior to the formal launch of a procurement procedure, the public authority may consult the market in order to prepare its needs and technical specifications. For companies, this upstream phase represents a strategic window to showcase innovative solutions, provided that the principle of fair competition is respected.
