ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of--
PumaEnergy Honduras, S.A. de C.V. Under ContractNo. SPE605~18-D-1268 APPEARANCES FORTHE APPELLANT: ) ) ) ) )

APPEARANCES FORTHE 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 ChiefTrial Attorney Jaqueline L. Neumann, Esq. Matthew Vazquez, Esq.

Trial Attorneys DLA Energy FortBelvoir, VA OPINION BYADMINISTRATIVE JUDGE MCILMAIL ON GOVERNMENT'S MOTIONFOR SUMMARYJUDGMENT. Appellant appeals from the termination ofits fuel delivery contract for default. The government requests summaryjudgment on that issue, and the dismissal for lack of jurisdiction ofappellant's ancillary requests for injunctive relief.* Summaryjudgment shall be granted ifthe movant shows that there is no genuine dispute as to.any material fact and the movant is entitled tojudgment as a matter of law. AvantAssessment, LLC, ASBCA No. 58867, 15-1 BCA

### 'if 36,067 at 176,127

.(citing Fed. R. Civ. P. 56(a)). The governmentjustifies a termination for default
*The government initially filed a motion to dismiss for failure to state a claim upon which reljefcould 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 thatitwould treat the government's filing as a motion for summaryjudgment. Iri accordance with the Board's guidance on summaryjudgmentmotions, both parties proposed statements offact (government

- Statement ofMaterial Undisputed Facts (SUMF) and appellant- Statement ofGenuine Issues of Material Fact (SGIMF)).where the contractor failed to perform the work; the contractor mustthen 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., ASBCANo. 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 thatthere is no genuine dispute as to any material fact and that it is entitled tojudgment as a matter oflaw on whether its default termination may stand, we grant its motion for summaryjudgment.
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 reliefthat we do not possessjurisdiction to entertain. See CDM Constructors, Inc., ASBCANo. 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 ofContract Appeals

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# ~~ TIMOTHYp. ~CIL Administrative Judge

_ Armed Services Board ofContract Appeals



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OWEN C. WILSON Administrative Judge Vice Chairman Armed Services Board ofContract AppealsI certify that the foregoing is a true copy ofthe Opinion andDecision ofthe Armed Services Board ofContractAppeals in ASBCA No. 61966, Appeal ofPuma· Energy Honduras, S:A. de C.V., rendered in conformance withthe Board's Charter.
Dated:

3 PAULLAK. GATES-LEWIS Recorder, Armed Services Board ofContract Appeals