              ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--                                    )
                                               )
Puma Energy Honduras, S.A. de C.V.             )       ASBCA No. 61966
                                               )
Under Contract No. SPE605~18-D-1268            )

APPEARANCES FOR THE APPELLANT:                         Alberto J. Bayouth-Montes, Esq.
                                                       Jerry Lucas Marrero-Cartagena, Esq.
                                                       Carlos A. Vazquez-Alberty, Esq.
                                                       Andres A. Calderon, Esq.
                                                        O'Neill & Borges LLC
                                                        San Juan, PR

APPEARANCES FOR THE GOVERNMENT:                        Daniel K. Poling, Esq.
                                                        DLA Chief Trial Attorney
                                                       Jaqueline L. Neumann, Esq.
                                                       Matthew Vazquez, Esq.
                                                        Trial Attorneys
                                                        DLA Energy
                                                        Fort Belvoir, VA

              OPINION BY ADMINISTRATIVE JUDGE MCILMAIL
           ON GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT.

        Appellant appeals from the termination of its fuel delivery contract for default.
The government requests summary judgment on that issue, and the dismissal for lack
of jurisdiction of appellant's ancillary requests for injunctive relief.*

  Summary judgment shall be granted if the movant shows that there is no genuine
  dispute as to .any material fact and the movant is entitled to judgment as a matter of
  law. Avant Assessment, LLC, ASBCA No. 58867, 15-1 BCA 'if 36,067 at 176,127
. (citing Fed. R. Civ. P. 56(a)). The government justifies a termination for default

* The government initially filed a motion to dismiss for failure to state a claim upon
       which reljef could be granted, or in the alternative, to strike appellant's r·equest
       for injunctive reHef. By order dated July 9, 2019, the Board advised the parties
       that it would treat the government's filing as a motion for summary judgment.
       Iri accordance with the Board's guidance on summary judgment motions, both
       parties proposed statements of fact (government - Statement of Material
       Undisputed Facts (SUMF) and appellant- Statement of Genuine Issues of
       Material Fact (SGIMF)).
where the contractor failed to perform the work; the contractor must then demonstrate
that its default is excused. HK&S Constr. Holding Corp., ASBCA No. 60164, 19-1
BCA 'ti 37,268 at 181,352. Here, it is undisputed that appellant failed to deliver fuel to
the government because overdue invoices not yet paid by the government caused
appellant's "internal fuel dispatch system" to automatically block the fuel deliveries
at issue, resulting in their non-delivery (app. sur-reply at 6 'ti 19; SGIMF 'ti 19; SUMF
't[ 29). Although government nonpayment that causes financial incapacity may excuse ·
a contractor's nonperformance, see Cosmic Constr. Co., ASBCA No. 24014, 88-2
BCA 't[ 20,623 at 104,242, here it is undisputed that appellant's own internal business
practices, as well as its own invoicing errors, were the reason it failed to perform (R4,
tab 202; SGIMF 'ti 19); consequently, appellant defaulted, and its default is not
excused. Because the government has shown that there is no genuine dispute as to any
material fact and that it is entitled to judgment as a matter of law on whether its default
termination may stand, we grant its motion for summary judgment.

       In addition, appellant requests that we declare that the contract is still valid and
in place and that appellant may deliver fuel to the government (compl. at 6). Those are
requests for injunctive relief that we do not possess jurisdiction to entertain. See CDM
Constructors, Inc., ASBCA No. 59524, 15-1 'ti 36,097 at 176,238. Accordingly, we
dismiss those requests for lack of jurisdiction.

       We find it unnecessary to address any further the parties' contentions. Accordingly,
the appeal is denied.

       Dated: January 14, 2020



                                                 ~~TIMOTHY p. ~CIL
                                                   Administrative Judge                   _
                                                   Armed Services Board
                                                   of Contract Appeals


                                                   !co~


RICHARD SHACKLEFORD                                OWEN C. WILSON
Administrative Judge                               Administrative Judge
Acting Chairman                                    Vice Chairman
Armed Services Board                               Armed Services Board
of Contract Appeals                                of Contract Appeals



                                            2
      I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 61966, Appeal of Puma·
Energy Honduras, S:A. de C.V., rendered in conformance with the Board's Charter.

      Dated:



                                                 PAULLAK. GATES-LEWIS
                                                 Recorder, Armed Services
                                                 Board of Contract Appeals




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