ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of--

Puma Energy Honduras, S.A. de C.V. 

Under Contract No. SPE605~18-D-1268 

APPEARANCES FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 61966 

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 

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 

RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

2 

~~ TIMOTHY p. ~CIL 

Administrative Judge _ 

Armed Services Board 

of Contract Appeals 

!co~ 

OWEN C. WILSON 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 
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: 

3 

PAULLAK. GATES-LEWIS 

Recorder, Armed Services 

Board of Contract Appeals