In the United States Court of Federal Claims

No. 14-541C

(Filed: May 20, 2015)

JACINTOPORT INTERNATIONAL LLC,

Plaintiff,

v.

THE UNITED STATES OF AMERICA,

Defendant.

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Contract Disputes Act (“CDA”), 41 

U.S.C. § 7104; Motion for Judgment on 

the Pleadings, RCFC 12(c); Motion for 

Summary Judgment, RCFC 56; Contract 

Interpretation; Patent Ambiguity; Latent 

Ambiguity; Extrinsic Evidence.

 

James Hamilton, Morgan, Lewis & Bockius LLP, Washington DC, attorney of 

record for plaintiff, with whom were Raechel Anglin and Patrick Harvey.

Veronica Nicole Onyema, Commercial Litigation Branch, Civil Division, United 

States Department of Justice, Washington DC, for defendant. With her were 

Franklin E. White, Jr., Assistant Director; Robert E. Kirschman, Jr., Director; 

Benjamin C. Mizer, Acting Assistant Attorney General; and M. Katherine Stroker, 

Deputy Assistant General Counsel, Office of the General Counsel, Litigation and 

Enforcement (GC/LE), U.S. Agency for International Development, Washington, 

DC.

OPINION AND ORDER

This case, which presents a claim under the Contract Disputes Act (“CDA”), 41 U.S.C. § 

7104(b)(1), is currently before the Court on plaintiff’s motion for partial judgment on the 

pleadings and the government’s cross-motion for partial summary judgment. For the reasons set 

forth below, plaintiff’s motion is DENIED, and the government’s cross-motion is GRANTED 

IN PART and DENIED IN PART.
2

BACKGROUND

On August 11, 2006, the United States Agency for International Development 

(“USAID”) posted Solicitation Number USAID-RFP-TRN-06-060 (“the solicitation”). 

Solicitation 1, Apr. 20, 2015, ECF No. 21-1. The solicitation requested proposals to “provide 

pre-positioned packaged food storage, cargo handling, custodial and logistics services, covering 

food commodities for the [USAID] Title II Food Aid Program.” Solicitation 2. Plaintiff 

Jacintoport International LLC (“Jacintoport”), a private port facility operator in Houston, Texas, 

submitted the offer that USAID ultimately accepted. Accordingly, effective May 1, 2007, 

USAID and Jacintoport entered into a contract, which initially ran until April 30, 2009 but was 

extended several times until it ultimately terminated in October 2009. Compl. ¶ 2, Ex. A

(“Contract”) at 1, 18-19.

There are two issues before the Court in this case. The first concerns the extent to which 

the contract obligated the government to reimburse Jacintoport for costs it incurred to fumigate 

the warehouse within which the USAID commodities were stored. According to the 

government, the contract provided reimbursement for the costs of fumigating the commodities 

themselves, but not the warehouse. Def.’s Opp’n & Cross-Mot. 11-16, Jan. 12, 2015, ECF No. 

14.

The provision of the contract that is relevant to the resolution of this issue is Section VI, 

specifically paragraphs A and D. Section VI is captioned “RESPONSIBILITY FOR 

CONDITION OF WAREHOUSE AND PROTECTION OF COMMODITIES” and states, in 

pertinent part, as follows:

A. The Contractor must maintain the warehouse in a sound, clean 

condition and in accordance with the standards in this contract, take all 

commercially reasonable steps to keep it free of insects, rodents, birds, and 

other conditions which may adversely affect the condition of the commodities 

or their containers, including but not limited to fumigation which shall be

reimbursed by USAID.

B. The Contractor must, in accordance with the standards in this 

contract, take all commercially reasonable steps to promptly detect any 

deterioration, insect infestation, rodent damage, mold, or any other condition 

which may adversely affect the condition of the commodities or their 

containers. Contractor will conduct daily inspections of cargo in the warehouse, 

provide ventilation as needed and order inspectors [sic] when necessary.

C. If any of the conditions above are detected, the Contractor must 

notify USAID by telephone and confirm such notification in writing. Pending 

receipt of instructions from USAID, the Contractor must take all reasonable 

steps necessary to protect and preserve the affected commodities or their 

containers.
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D. Contractor shall fumigate the commodities as necessary or as 

determined to be necessary by inspection. All fumigation costs shall be 

reimbursed by USAID and shall be billed at cost.

Contract at 7.

Also relevant to the issue of whether the contract promised reimbursement for warehouse 

fumigation in addition to commodity fumigation is the following paragraph, contained in the 

solicitation appended to the contract:

Fumigation: If condition inspectors find infested commodities, the contractor shall 

arrange and pay for fumigation of any lots found to be infested . . . . Fumigation is 

to be done in accordance with the FGIS fumigation handbook. The contractor shall 

pay all cost associated with fumigation. The contractor shall be reimbursed by the 

government for these costs on a cost reimbursable basis in accordance with the 

contract rates, terms and conditions. Copies of all fumigation reports shall be sent 

to the USAID CTO.

Contract at 15.

The second issue before the Court concerns the rate that Jacintoport was entitled to 

charge for fumigation services. Schedule B of the Contract, entitled “Schedule of Rates,” states 

that “[u]nless otherwise provided, charges payable by USAID or commodity vendors or carriers 

for receipt, storage, inspection and re-delivery of commodities pursuant to this Agreement will 

be as follows:”
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Contract at 11.

Jacintoport submitted two fumigation-related invoices to USAID during the term of the 

contract. Those invoices, which USAID paid in full, were dated October 5 and September 27, 

2007. See Def.’s Opp’n & Cross-Mot. Ex. B. The total amount billed in the invoices was

$10,918.65, which constituted reimbursement for the fumigation of certain lots of cargo at the 

cost to Jacintoport of hiring a third party vendor. See id.

Jacintoport’s complaint in this case arose out of a certified claim that it filed on May 22, 

2013, some three and a half years after the contract terminated.

1 Compl. Ex. B. That claim 

sought an additional $552,658.35 for expenses Jacintoport allegedly incurred for fumigation of 

its warehouse, charged at $3.00 per metric ton. Id. The contracting officer denied Jacintoport’s

claim on July 18, 2013. Compl. Ex. C. 

The contracting officer reasoned that “our contract scope of services, and pricing, do not 

require (as a separate performance service) the fumigation of a warehouse.” Id. Rather, 

according to the contracting officer, the word “fumigation” in the contract “is in reference to the 

commodities.” Id. Furthermore, the contracting officer found that the rate that Jacintoport

sought to charge for warehouse fumigation, which was based upon the quantity of commodities 

stored in the warehouse and set at $3.00 per metric ton, departed from the intent of the parties as 

well as the logistics industry standard. Id. According to the contracting officer, “[t]he 

government and Jacintoport had a meeting of the minds regarding the fact that commodity 

fumigation (not warehouse fumigation) would be budgeted at $3.00 per fumigated metric ton,” 

but that, in practice, it “would be reimbursed by the government ‘at cost.’” Id. Regarding the 

industry standard, the contracting officer observed that “[t]ypically, if warehouse fumigation is 

contemplated, a warehouse owner and a fumigator may agree on costs or prices related to 

warehouse area, square or cube footage, rather than the quantity of cargo stored in the 

warehouse,” measured by metric ton. Id.

After receiving the contracting officer’s decision, Jacintoport brought this action directly 

on the claim in this Court, pursuant to the CDA, 41 U.S.C. § 7104(b)(1). Arguing that the plain 

language of the contract manifests USAID’s agreement to reimburse Jacintoport for the 

fumigation of its entire warehouse at a rate of $3.00 per metric ton, Jacintoport has moved for 

partial judgment on the pleadings. Pl.’s Mot. for Partial J. on the Pleadings (“Pl.’s Mot.) 1. The 

government, on the other hand, has cross-moved for partial summary judgment, contending that 

“the plain language of the contract, as well as Jacintoport’s own conduct during contract 

performance, demonstrates that its claim lacks merit.” Def.’s Opp’n & Cross-Mot. 1.

 

 

1

Jacintoport filed the certified claim while it was defending against a qui tam fraud action 

related to other aspects of its performance of the USAID contract. See United States ex rel. 

Raggio v. Jacintoport Int’l, LLC, Civ. No. 1:10-cv-01908 (D.D.C.).
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DISCUSSION

I. Jurisdiction

The Court has subject-matter jurisdiction to decide this case under the Tucker Act, 28 

U.S.C. § 1491, and the CDA, 41 U.S.C. § 7104. The Tucker Act grants the United States Court 

of Federal Claims jurisdiction “to render judgment upon any claim against the United States 

founded either upon the Constitution, or any Act of Congress or any regulation of an executive 

department, or upon any express or implied contract with the United States, or for liquidated or 

unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act 

further provides that the Court “shall have jurisdiction to render judgment upon any claim by or 

against, or dispute with, a contractor arising under section 7104(b)(1) of title 41 [the CDA].” Id.

at § 1491(a)(2).

Before the Court may review a claim by a contractor, the CDA requires the contractor to 

have (1) submitted to the contracting officer a valid claim within the meaning of FAR 2.101, 

certified if the amount requested is more than $100,000, and (2) received from the contracting 

officer a final decision on that claim. 41 U.S.C. § 7103; M. Maropakis Carpentry, Inc. v. United 

States, 609 F.3d 1323, 1327 (Fed. Cir. 2010). These requirements are jurisdictional. Id. at 1328.

Here, the government does not contest Jacintoport’s assertion that it has met all 

jurisdictional requirements, see Joint Prelim. Status Report at 1, Oct. 17, 2014, ECF No. 6, and 

the Court likewise is satisfied that it possesses jurisdiction to rule on Jacintoport’s claim.

II. Standards for Decision

A. Judgment on the Pleadings

Rule 12(c) of the Rules of the Court of Federal Claims (“RCFC”) permits a party, “[a]fter 

the pleadings are closed—but early enough not to delay trial” to move the court “to resolve the 

substantive merits of the controversy as disclosed on the face of the pleadings.” Crusan v. 

United States, 86 Fed. Cl. 415, 417 (Fed. Cl. 2009) (quoting 5C Charles Alan Wright & Arthur 

R. Miller, Federal Practice and Procedure § 1367 (3d ed. 2008)). When deciding a motion for 

judgment on the pleadings, “the court may review ‘the content of the competing pleadings, 

exhibits thereto, matters incorporated by reference in the pleadings, whatever is central or 

integral to the claim for relief or defense, and any facts of which the . . . court will take judicial 

notice.” Crusan, 86 Fed. Cl. at 417 (quoting 5C Wright & Miller § 1367). The court will grant 

such a motion “where there are no material facts in dispute and the [moving] party is entitled to 

judgment as a matter of law.” Forest Labs., Inc. v. United States, 476 F.3d 877, 881 (Fed. Cir. 

2007). 

B. Summary Judgment

Like judgment on the pleadings, summary judgment may be granted where there is no 

genuine issue of material fact and the movant is entitled to judgment as a matter of law. RCFC

56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Unlike judgment on the 
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pleadings, however, “[a] party asserting that a fact cannot be or is genuinely disputed must 

support the assertion by,” for instance, “citing to particular parts of materials in the record, 

including depositions, documents, electronically stored information, affidavits or declarations, 

stipulations . . ., admissions, [or] interrogatory answers.” RCFC 56(c).

In ruling on a motion for summary judgment, the court must draw all justifiable 

inferences in favor of the nonmoving party. Anderson, 477 U.S. at 255. The court must not, 

however, weigh the evidence or make findings of fact. See id. at 249. The court should act with 

caution in granting summary judgment and deny summary judgment where there is reason to 

believe that the better course would be to proceed to a full trial. Id. at 255.

C. Contract Interpretation

Contract interpretation begins with the language of the contract. Bell/Heery v. United 

States, 739 F.3d 1324, 1331 (Fed. Cir. 2014). Further, “[w]hen interpreting the contract, the 

document must be considered as a whole and interpreted so as to harmonize and give reasonable 

meaning to all of its parts.” NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir.

2004). Such an interpretation “is to be preferred over one that leaves a portion of the contract 

useless, inexplicable, void, or superfluous.” Id. (citing Gould, Inc. v. United States, 935 F.2d 

1271, 1274 (Fed. Cir. 1991)).

When the contract’s “provisions are ‘clear and unambiguous, they must be given their 

plain and ordinary meaning.’” Coast Fed. Bank, FSB v. United States, 323 F.3d 1035, 1040 

(Fed. Cir. 2003) (quoting Landmark Land Co. v. Fed. Deposit Ins. Corp., 256 F.3d 1365, 1373 

(Fed. Cir. 2001)); see also Sea-Land Serv., Inc. v. United States, 553 F.2d 651, 658 (Ct. Cl. 

1977). In other words, “the court may not look to extrinsic evidence to interpret [unambiguous]

provisions.” TEG-Paradigm Envtl., Inc. v. United States, 465 F.3d 1329, 1338 (Fed. Cir. 2006). 

A contract is ambiguous if the “language can reasonably be interpreted in more than one 

way.” LAI Servs. v. Gates, 573 F.3d 1306, 1314 (Fed. Cir. 2009). If the contract is ambiguous, 

the court’s approach to construction depends upon whether the ambiguity is patent or latent. The 

ambiguity is patent when it is “obvious, gross, [or] glaring, so that plaintiff contractor had a duty 

to inquire about it at the start.” NVT Techs., 370 F.3d at 1162. Therefore, in the case of a patent 

ambiguity, the court construes the contract against the contractor. On the other hand, where an 

ambiguity is not sufficiently glaring to trigger the duty to inquire, the ambiguity is latent. 

HPI/GSA 3C, LLC v. Perry, 364 F.3d 1327, 1334 (Fed. Cir. 2004). In the case of a latent 

ambiguity, the general rule of contra proferentem, which requires the court to construe the 

contract against the government as the drafter, may apply. Id.

As the Federal Circuit has observed, however, “contra proferentem is a rule of last 

resort.” Gardiner, Kamya & Assocs., P.C. v. Jackson, 467 F.3d 1348, 1352 (Fed. Cir. 2006). 

“Ascertaining the most reasonable construction of contract language utilizing other tools of 

contract interpretation must be the first priority.” Id. Thus, “before resorting to the doctrine of 

contra proferentem, ‘[the court] may appropriately look to extrinsic evidence to aid in [its] 

interpretation of the contract.’” Id. at 1354 (quoting Metro. Area Transit, Inc. v. Nicholson, 463 

F.3d 1256, 1260 (Fed. Cir. 2006)). For example, the court may consider contemporaneous 
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circumstances, evidence of the parties’ intent, or their course of performance. See Pub. Serv. Co. 

of Okla. v. United States, 88 Fed. Cl. 250, 258 (2009). If such evidence fails to illuminate the 

meaning that the parties intended, the court then may apply the doctrine of contra proferentem

and rule against the government. Gardiner, Kamya & Assocs., 467 F.3d at 1352 (“[T]he doctrine 

of contra proferentem is applied only when other approaches to contract interpretation have 

failed.”); see also Alvin, Ltd. v. U.S. Postal Serv., 816 F.2d 1562, 1565 (Fed. Cir. 1987) (“[I]n 

the case of contracts, the avowed purpose and primary function of the court is the ascertainment 

of the intention of the parties.”).

III. Application of Standards 

A. Cross-motions concerning whether the contract provides reimbursement for 

fumigation of commodities only or whether such reimbursement is provided 

for fumigation of the warehouse as well

The first issue presented by the parties’ cross-motions is whether the contract 

contemplated reimbursement for Jacintoport’s fumigation of its warehouse or only for 

fumigation of the lots of commodities. Jacintoport, for its part, argues that the language of the

contract unambiguously required it to fumigate the warehouse itself and that the contract

provided that Jacintoport would be reimbursed for doing so. Jacintoport highlights paragraph A 

of section VI of the contract, which appears to address Jacintoport’s obligations related to the 

warehouse:

[T]he Contractor must maintain the warehouse in a sound, clean condition and in 

accordance with the standards in this contract, take all commercially reasonable steps to 

keep it free of insects, rodents, birds, and other conditions which may adversely affect the

condition of commodities or their containers, including but not limited to fumigation 

which shall be reimbursed by USAID.

Pl.’s Mot. 5 (quoting Contract at VI.A) (plaintiff’s emphasis). According to Jacintoport,

paragraph A imposes obligations and a right to reimbursement with respect to the fumigation of 

the warehouse itself, while paragraph D of section VI deals with a separate matter—the 

fumigation of infested lots. Id. Paragraph A, Jacintoport argues, was intended to require 

“prophylactic fumigation” of the warehouse generally “to preserve the condition of the 

commodities,” Pl.’s Reply & Resp. 7, 9, Feb. 12, 2015, ECF No. 17 (emphasis in original),

whereas paragraph D refers to fumigation of commodities “‘as necessary’ where particular 

infested lots are identified by inspection or otherwise.” Id. at 10. Thus, Jacintoport argues, 

“[t]he Contract cannot be read as requiring only the fumigation of infested commodity lots 

without reading Subparagraph VI.A out of the contract.” Pl.’s Mot. 6.

 

The government, predictably, also claims that the plain language of the contract supports 

its interpretation. The government observes that the contract repeatedly refers to fumigation with 

respect to the commodities themselves, and not the warehouse. Def.’s Cross-Mot. & Opp’n 12 

(citing Contract at section VI.C, which requires the contractor to “take all reasonable steps 

necessary to protect and preserve the affected commodities or their containers” and VI.D, which

requires the contractor to “fumigate the commodities as necessary”); see also id. at 13 (observing 
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that the reference to fumigation in section VI.A follows a specific reference to “conditions which 

may adversely affect the condition of the food commodities or their packages”).

Further, the government observes, the paragraph in the solicitation labeled “fumigation”

refers to “fumigation of any lots found to be infested” and states that “[f]umigation is to be done 

in accordance with the FGIS fumigation handbook.” Def.’s Cross-Mot. & Opp’n 4-5, 12-14 

(quoting Contract at 22). That handbook, the government correctly notes, outlines “policies and 

procedures for the fumigation of grain and certain commodities”; it does not purport to cover the 

fumigation of warehouses or warehouse structures. Id. at 13-14, Ex. A at 1-1. In fact, the 

government contends, Jacintoport’s interpretation of the contract “runs counter to common 

sense,” observing, among other things, that “because Jacintoport also leased its warehouse space 

to other entities, it is unclear how the entire structure could be fumigated so that only the areas 

housing USAID’s various shipments of incoming and outgoing commodities would be 

impacted.” Id. at 15.

The Court concludes that neither party has established that its reading of the contract is 

the only reasonable one. Indeed, both parties’ interpretations are subject to doubt. For example, 

the gravamen of Jacintoport’s argument is that the fumigation obligations imposed by section VI,

paragraphs A and D cover separate situations. As noted, it argues that paragraph A provides for 

prophylactic fumigation of the warehouse itself to prevent infestation of the commodities, while 

paragraph D is intended to require fumigation of the commodities themselves where they have 

already become infested. The problem with this argument, however, is that it is inconsistent with 

the language of paragraph D, which requires the contractor to fumigate the commodities “as 

necessary or as determined to be necessary by inspection.” Contract at 7 (emphasis added). This 

language indicates that fumigation of commodities may be contemplated under paragraph D for 

prophylactic purposes as well as for circumstances in which they have already become infested. 

And if that is so, then a provision affording Jacintoport reimbursement for prophylactic

warehouse fumigation as well is arguably redundant. Further, Jacintoport’s argument does not 

come to terms with the fact that the FGIS handbook incorporated into the contract covers only 

commodity fumigation and not warehouse fumigation, or with the government’s contention that 

if warehouse fumigation were contemplated, then the rate of reimbursement would be based on 

the square footage of the warehouse, and not the quantity of the commodities.

The government’s interpretation of the language of the contract is also not free from 

doubt. In particular, the government has not satisfactorily addressed Jacintoport’s argument that 

paragraph A appears to set forth a separate requirement for reimbursement for fumigation as 

necessary to keep “the warehouse . . . free of insects, rodents, birds and other conditions which 

may adversely affect the condition of the commodities or their containers.” Contract at 7. Thus, 

in its reply brief, the government asserts that “Jacintoport’s general obligation to maintain its

warehouse in a sound, clean condition is separate from USAID’s obligation to reimburse it for 

commodity fumigation expenses” and that “Section VI.A does not reference reimbursement, 

while Section VI.D does.” Def.’s Reply 3-4, Mar. 2, 2015, ECF No. 18. But contrary to the 

government’s argument, Section VI.A does explicitly reference reimbursement for fumigation.

At this stage, the Court concludes that neither party’s interpretation of the contractual 

language is outside the “zone of reasonableness.” Metric Constructors, Inc. v. NASA, 169 F.3d 
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747, 751 (Fed. Cir. 1999). The contract could reasonably be read to provide reimbursement for 

both prophylactic warehouse fumigation and commodity fumigation as Jacintoport would have 

it, given that entitlement to reimbursement appears in both paragraph A, which is addressed to 

warehouse conditions, and paragraph D, which concerns fumigation of the commodities 

themselves. Or, as the government argues, paragraph A could be interpreted as imposing only a 

general obligation to take such steps as are commercially reasonable to protect the condition of 

the commodities, with the language referring to “fumigation which shall be reimbursed by 

USAID” serving as a reference to the fumigation of commodities that is specifically required 

under paragraph D. 

 

Because “[a]mbiguity exists when contract language can reasonably be interpreted in 

more than one way,” LAI Servs., 573 F.3d at 1314, the contract is ambiguous as to whether 

USAID committed to reimburse Jacintoport for fumigating its warehouse or whether the 

obligation to reimburse exists only for commodity fumigation. This ambiguity, however, was 

not so “obvious, gross, or glaring” that Jacintoport had a duty to inquire about it at the start.

NVT Techs., 370 F.3d at 1162. Rather, the ambiguity was latent.

As explained above, when the contract contains a latent ambiguity, the Court may look to 

extrinsic evidence to aid in its construction. Indeed, the government has sought to rely upon 

such evidence in its motion for summary judgment, contending that “the course of dealings 

between the parties demonstrates that both understood that only commodity fumigation was 

reimbursable, and at cost.” Def.’s Cross-Mot. & Opp’n 18. It has also argued that Jacintoport’s 

reading of the contract is inconsistent with industry practice. Id. at 20. At this stage in the 

proceedings, however, no discovery has yet taken place. Jacintoport has submitted a Rule 56(d) 

declaration in support of its opposition to the government’s motion for summary judgment, 

which persuasively asserts that it needs discovery in order to respond to the government’s 

arguments concerning, among other things, the course of dealing between the parties regarding 

warehouse and/or commodity fumigation. See Pl.’s Reply & Resp. 14-15, Attachs. 1-2.

For these reasons, the Court concludes that Jacintoport’s motion for partial judgment on 

the pleadings must be denied. Further, the government’s motion for summary judgment on the 

issue of whether the contract provided for reimbursement for fumigation of Jacintoport’s 

warehouse is premature, as no discovery has yet taken place in the case. The Court will 

therefore deny this portion of the government’s motion, without prejudice to it refiling another 

motion for summary judgment once the parties have had the opportunity to engage in discovery.

B. Cross-motions regarding proper rate of reimbursement for costs of 

fumigation

In addition to arguing that the contract required USAID to reimburse it for warehouse 

fumigation, Jacintoport contends that “[t]he best reading of the language, ‘Fumigation (at cost) 

$3/mt,’ is that fumigation will be deemed to cost $3.00 per metric ton and will be reimbursable at 

that rate.” Pl.’s Mot. 4. This interpretation makes sense, explains Jacintoport, when the contract 

is interpreted to require fumigation of the entire warehouse because “[t]he use of the $3.00 a 

metric ton cost figure was the Contract’s way of allocating a fair share of [warehouse] 

fumigation costs to the fumigation of the prepositioned goods stored in the warehouse with other 
10

commodities.” Pl.’s Reply & Resp. 4, 11 (“Because Schedule B provides a specific pricing 

formula tied to the quantity of prepositioned goods stored at Jacintoport’s facility, the ‘size of 

Jacintoport’s warehouse’ and ‘the percentage of Jacintoport’s 550,000 square feet of warehouse 

space that would be allocated for USAID’ are irrelevant.”).

The government, on the other hand, argues that $3.00 per metric ton represents an 

estimated rate “included in the Contract for budgetary purposes” and that “[w]ithout including 

budgetary line items for certain costs, it would be difficult to estimate the total cost of the 

Contract.” Def.’s Cross-Mot. & Opp’n 15-16. The government also notes that, consistent with 

its interpretation of item 6 in Schedule B, other provisions in the contract state that “fumigation 

costs . . . shall be billed at cost.” Def.’s Cross-Mot. & Opp’n 15 (quoting Section VI.D of the 

contract and adding emphasis).

Neither party’s proffered interpretation, however, squares with the provision’s language, 

which is internally inconsistent. Fumigation cannot be billed both “at cost” and at “$3.00 per 

metric ton” irrespective of its cost. Nonetheless, the language of item 6 in Schedule B of the 

contract appears to require as much. Jacintoport’s attempt to reconcile this contradiction by 

casting “$3.00 per metric ton” as an “agreed-upon cost” is unpersuasive. If the parties agreed 

that fumigation would be reimbursed at $3.00 per metric ton regardless of the actual cost, why 

would they have used the term “at cost” at all, and why would the contract consistently refer to 

the contractor’s entitlement to be paid for the costs of fumigation as “reimbursement,” which by 

definition is a repayment of actual expenses incurred? See Merriam-Webster, 

http://www.merriam-webster.com/dictionary/reimburse (last visited May 15, 2015) (defining 

“reimburse” as “to pay someone an amount of money equal to an amount that person has spent”).

The government similarly fails to resolve the contradiction. It does not explain why a 

“schedule of rates” would incorporate an estimated cost that the agency used merely for 

budgetary purposes.

Given that item 6 of Schedule B appears to contradict itself, it is patently ambiguous. 

Because of its “obvious, gross, and glaring” nature, Jacintoport had a duty to confirm that its 

understanding of the charges authorized for fumigation reimbursement under the contract was 

correct and that the language of the contract clearly reflected that understanding. See NVT 

Techs., 370 F.3d at 1162. Therefore, item 6 of Schedule B shall be construed against 

Jacintoport, and the Court holds that the contract provided for reimbursement of fumigation at

actual cost.

CONCLUSION

In accordance with the foregoing, Jacintoport’s motion for judgment on the pleadings is 

DENIED, and the government’s cross-motion for summary judgment is GRANTED IN PART 

and DENIED IN PART. In addition, within 30 days of the date of this Order, the parties shall 

file a joint proposed schedule to govern proceedings going forward, in light of this opinion.

IT IS SO ORDERED.
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s/ Elaine D. Kaplan 

ELAINE D. KAPLAN

Judge