52.216-9067 ECONOMIC PRICE ADJUSTMENT - LIQUID PROPANE GAS (MAR 2010).
(a) WARRANTIES. The Contractor warrants that -
(1) The unit prices set forth in the Schedule do not include allowances for any portion of the contingency covered by this clause; and
(2) The prices to be invoiced hereunder shall be computed in accordance with the provision of this clause.
(b) DEFINITIONS. As used throughout this clause-
(1) The term "base price" means-
(i) The unit price offered for an item and included in the contract award schedule at time of award
(2) Market price means a price determined by an independent trade association, governmental body, or other third party and reported or made available in a consistent manner in a publication, electronic data base, or other form. This price may be either a single market price or a combination of market prices for price adjustment for individual items by product, market area, and publication as specified in paragraph (f) below.
(3) The term "base market price" means the preselected market price for an item as published on [ Note 1 ] in the publication specified in paragraph (f).
(4) The Adjusting Market Price means the average price listed in the publication specified in paragraph (f) immediately preceding the date of adjustment.
(c) ADJUSTMENTS. The Contracting Officer shall issue a modification to the contract to reflect any price change pursuant to this clause. The contract price shall be adjusted at the initial date of performance only if the change between the market price at the start of performance and the base market price equals 3% (positive or negative) or more of the contract price. Price changes thereafter shall be no more frequent than every two weeks. Therefore, after the initial date of performance, the difference between the current market price and the base market price will be determined on a weekly basis, providing there has not been a price adjustment in the prior week (in which case no adjustment would be applicable). The contract price will be changed by this difference, (positive or negative), at any time the adjustment from the current price to the newly adjusted price (positive or negative) is determined to equal 3% or more of the base price. Price changes will be formally issued in a contract modification which will be effective on the fourth business day immediately following the date of the publication used for the adjusting market price. For example, if the adjusting market price was published on a Monday, the effective date of the price change would be the Friday of that same week. (1) CALCULATIONS. The prices payable hereunder shall be determined by adjusting the award price by the same number of cents, or fraction thereof that the market price increases or decreases, per like unit of measure, no more than every two weeks, providing that such an adjustment would result in a 3% or more change between the base price and the adjusted contract price. All arithmetical calculations, including the final adjusted unit price shall be rounded to the nearest thousandth of a cent. For example, if performance started January 1, the contract award price is $2.00 and if the base market price on the base reference date is 150.000 cents, and the adjusting market priceimmediately preceding the performance period is 160.000 cents, the contract price shall increase by 10.000 cents $2.10 at the start of the performance period. If the adjusting market price was 155.000 cents instead of 160.000, there would be no adjustment, since the difference between the adjusting market price and the base market price is less than 3% of the base price. All calculations in this example are purely hypothetical, and not based on any actual dates or prices.
(2) REVISION OF PUBLISHED MARKET PRICE INDICATOR. In the event--
(i) Any applicable market price is discontinued or its method of derivation is altered substantially; or
(ii) The Contracting Officer determines that the market price indicator consistently and substantially failed to reflect market conditions,--
the parties shall mutually agree upon an appropriate and comparable substitute for determining the price adjustments hereunder. The contract shall be modified to reflect such substitute effective on the date the indicator was discontinued, altered, or began to consistently and substantially fail to reflect market conditions. If the parties fail to agree on an appropriate substitute, the matter shall be resolved in accordance with the Disputes clause of the contract.
(3) FAILURE TO DELIVER. Notwithstanding any other provisions of this clause, no upward adjustment shall apply to product scheduled under the contract to be delivered before the effective date of the adjustment, unless the Contractor's failure to deliver according to the delivery schedule results from causes beyond the Contractor's control and without its fault or negligence, within the meaning of the clause Default of this contract, in which case the contract shall be amended to make an equitable extension of the delivery schedule.
(4) UPWARD CEILING ON ECONOMIC PRICE ADJUSTMENT. The Contractor agrees that the total increase in any contract unit price pursuant to these economic price adjustment provisions shall not exceed [ Note 2] percent of the award price in any applicable program year (whether a single year or a multiyear program), except as provided hereafter. This [ Note 2 ] percent is not cumulative for each program year, and instead is applied to the price in effect at the beginning of each program year, through the end of that program year.
(i) If at any time the Contractor has reason to believe that within the near future a price adjustment under the provisions of this clause will be required that will exceed the current contract ceiling price for any item, the Contractor shall promptly notify the Contracting Officer in writing of the expected increase. The notification shall include a revised ceiling the Contractor believes is sufficient to permit completion of remaining contract performance, along with appropriate explanation and documentation as required by the Contracting Officer.
(ii) If an actual increase in the market price would raise a contract unit price for an item above the current ceiling, the Contractor shall have no obligation under this contract to fill pending or future orders for such item, as of the effective date of the increase, unless the Contracting Officer issues a contract modification to raise the ceiling. If the contract ceiling will not be raised, the Contracting Officer shall so promptly notify the Contractor in writing.
(d) EXAMINATION OF RECORDS. The Contractor agrees that the Contracting Officer or designated representatives shall have the right to examine the Contractor's books, records, documents, or other data the Contracting Officer deems necessary to verify Contractor adherence to the provisions of this clause.
(e) FINAL INVOICE. The Contractor shall include a statement on the final invoice that the amounts invoiced hereunder have applied all decreases required by this clause.
(f) PUBLICATION, PRODUCT, AND LOCATION. The average of the high and low in BPN's Weekly Propane Newsletter, Propane Prices Update, Spot Prices for Natural Gas Liquids, at Mont Belvieu (not LDH) shall be used to calculate each four week average specified above. These prices measure the general rate and direction of price movement for this commodity within a market. This does not indicate a mandatory source of supply or area where bidders must obtain supplies.
(End of clause)