"Boka pilot" illegally expelled from piloting

The Administrative Court has for the second time annulled as unlawful the decision of the Government Commission for Concessions from July 2022. With this decision, the Commission, also for the second time, rejected the appeal of the company "Boka Pilot &Tug Services" from Bijela, which appealed against the decision that its bid in the 2018 tender for the pilotage concession in Boka Kotorska was declared allegedly incomplete.

According to the official results of that tender, the Government of Prime Minister Duško Marković (DPS) only awarded the maritime pilotage concession in Boka Bay to the companies Luka Kotor from Kotor and “Sea Pioneer Montenegro” from Herceg Novi in the summer of 2020, and five-year contracts were signed with them in August of that year. However, the third participant in the competition for the concession, the company “Boka Pilot&Tug Service”, which did not pass the tender, initiated a dispute before the Administrative Court, which, following the implementation procedure, has now for the second time accepted the allegations of “Boka Pilot” and issued a verdict annulling the Government's decision to grant the concession to Luka Kotor and “Sea Pioneer Montenegro”.

The offer of “Boka Pilota” was ranked first, only to be subsequently declared “ineligible” because, according to the assessment of the Tender Commission formed by the then Ministry of Capital Investments (MKI) and the tender conducted by the then Port Authority of Montenegro, the CD with the electronic offer of “Boka Pilota” was not physically bound to its paper part. “Boka Pilota” appealed against this procedure of the Tender Commission and already received a ruling in its favor before the Administrative Court in 2021, as the court annulled the decision of the Tender Commission declaring the offer of “Boka Pilota” as “ineligible”. The court then returned the case to the Tender Commission, requesting that it issue a new, legally-based decision on the ranking of the offers. However, the defendant, the state (now represented in these proceedings by the Ministry of Maritime Affairs and the Maritime Safety and Port Management Authority of Montenegro), did not comply with the positions of the Administrative Court and again issued a decision rejecting the offer of “Boka Pilota”.

This company again filed a lawsuit in the summer of 2022 with the Administrative Court, which at the end of March this year again issued a ruling accepting the lawsuit of "Boka Pilota" and annulling the decision of the Concessions Commission.

In the ruling, which "Vijesti" has access to, the Administrative Court concluded that "Boka Pilot", when submitting its bid for the 2018 tender, fully complied with the instructions given to the bidders by the state, and that the subsequent position of the Tender Commission to reject their bid as "unsuitable" because the CD with its electronic part "was not bound" but was delivered in a separate envelope, represents "an illegal subsequent tightening of the tender conditions and the introduction of excessive formalism into the bid evaluation procedure."

"In the retrial, the defendant (the Ministry of Maritime Affairs and UPSUL) is obliged to act in accordance with the precisely stated observations of the Court from this judgment, in accordance with Article 56 of the Law on Administrative Procedure, while taking into account the length of the proceedings in question, after which it will be able to make a new and legally based decision," the latest judgment of the Administrative Court states, among other things.

However, this has not been done to date, even though the verdict was issued on March 31st of this year, and the legal representatives of "Boka Pilota" in the meantime informed the co-director of UPSUL in a letter at the end of April. Nebojša Kaljević that the Administrative Court ruled in favor of the company from Bijela and that the state has therefore not yet finalized the procedure for granting the pilotage concession in Boka Bay from 2018, and that it is obliged to enable this company to renew this activity for which it is duly registered and holds all licenses.

However, to date, neither Kaljević nor the Ministry of Maritime Affairs, which exercises administrative supervision over the work of UPSUL, have acted in accordance with this judgment.

In this way, the state continues to prevent the company “Boka Pilot” from carrying out the activity for which it is registered. Due to legal complications and non-compliance with court decisions, this company has been blocked from providing pilotage services in Boka since mid-2020. Because of this, “Boka Pilot” is also pursuing a separate lawsuit against the state, seeking compensation for damages and lost profits.

Another company that previously provided pilot services in Boka, “Sea Pioneer Montenegro”, is already conducting an identical dispute against the state with a claim for compensation for damages in the amount of 1,2 million euros. They were deprived of this right in February 2023 when the Government, at the proposal of the then Prime Minister, Dritana Abazović, decided to grant the right to perform pilotage in the Boka only to the company Luka Kotor.

Abazović's government then obliged UPSUL to "prepare a proposal for a concession act as soon as possible and implement a new procedure for granting a concession for pilotage in Boka Bay". However, the Administration, which was in the meantime headed by PES personnel-and, first Haris Husic and then Nebojsa Kaljević, has not acted in accordance with this Government conclusion to date. In practice, this means that both “Sea Pioneer Montenegro” and “Boka Pilot” are blocked from carrying out the activities for which they have licenses, personnel and equipment, and that the monopoly on the highly profitable activity of piloting around 500 large passenger ships, the number of which on average enter the Boka annually, has been given exclusively to the Port of Kotor, and this situation has lasted for two and a half years.

“Boka Pilot” is also pursuing a separate lawsuit against the state, seeking compensation for damages and lost profits. “Sea Pioneer Montenegro” is also pursuing an identical lawsuit against the state, seeking compensation for damages in the amount of 1,2 million euros. They were deprived of that right in February 2023.