52.216-9070 ECONOMIC PRICE ADJUSTMENT - DAILY MARKET PRICE INDICATORS (SHIPS' BUNKERS).  

A


As prescribed at 16.203-4(a)(103), insert the following clause:

52.216-9070 ECONOMIC PRICE ADJUSTMENT - DAILY MARKET PRICE INDICATORS (SHIPS' BUNKERS) (JUL 2010) - DLAD

(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 provisions of this clause.

(b)  DEFINITIONS: As used throughout this clause, the term--

(1)  Award price means the original contract price.

(2)  Reference price means the market price indicator set forth in the Table in (f) below with which the award price is to fluctuate.

(i)  Base reference price means the market price indicator shown in the Table in (f) below and is the reference price from which economic price adjustments are calculated pursuant to this clause. This price will be expressed as Base Ref. Price in any price adjustment notification issued through contract modifications and/or postings to the DLA Energy ( formerly DESC ) web page at http://www.desc.dla.mil under the heading Vendor Resources and then Product Price Adjustments. The base reference date annotated in the Table shall remain unchanged throughout the life of the contract.

(ii)  Adjusting reference price means the market price indicator in effect on the date of delivery, used to determine the change in reference price. In the event one or more applicable reference prices are not (or were not) published, then the term adjusting reference price means the market price indicator for an item as published on the date nearest in time on or prior to the effective calendar date as expressed in (4) below. It is annotated as New Ref. Price in any Price Adjustment (PA) modification issued.

(3)  Current unit price means the price in effect for the day that the price adjustment provisions discussed in paragraph (c)  below begin. This price, expressed as Latest Unit Price in any DLA Energy ( formerly DESC ) price adjustment notification issued through contract modifications and/or postings to the DLA Energy ( formerly DESC ) web page at http://www.desc.dla.mil under the heading Vendor Resources and then Product Price Adjustments, shall be the unit price charged to the Government for supplies delivered under the contract.

(4)  Date of delivery means the date and time product is received by the requesting activity/vessel. This is shown by signature of receipt by the Government representative for the entire delivery. A single delivery that began on one date and ended on another date shall be considered as received on the date of completion annotated by the Government on the bunker delivery document. Excusable delays in delivery shall be handled on a case-by-case basis by the Contracting Officer.

(5)  Calendar week means a consecutive seven-day period, beginning with Monday, unless otherwise specified in (c)(1) below.

(6)  Published means issued in either print or electronic format by the service designated to be employed as an escalator, unless otherwise specifically stated. In the event of a conflict between the prices set forth in the print version and those set forth in the electronic version for the same date, the electronic version shall prevail, unless otherwise specified in (c)(1) below.

(c)  ADJUSTMENTS: The prices payable under this contract shall be the award price increased or decreased by the amount that the reference price shall have increased or decreased as of the date of delivery. The amount of increase or decrease in the award price shall be based on the same number of cents, or fraction thereof, that the reference price increases or decreases per like unit of measure.

(1)  DAY OF PUBLICATION: The adjusting reference price in effect on the date of delivery shall be that item's reference price effective (and normally published) on the date in which the delivery is made, or, in the event there is no publication on that day, it shall be the item's reference price as last previously published prior to that date.

NOTE: Platts issues corrections to its published prices on a regular basis. Platts posts corrections to its website (http://www.platts.com) for its subscribers. If a correction to a reference price is found on the Platts website, all of the items that use that reference price will be corrected. DLA Energy ( formerly DESC ) will correct any other reference prices, as notice of the correction is received. DLA Energy ( formerly DESC ) will work with the pricing services to determine the appropriate price, whenever an offeror or Contractor can show that the price referenced should be reviewed.

(2)  CALCULATIONS:

(i)  If averages are published within a given publication, then these averages will be used.

(ii)  For prices in U.S. gallons, if averages are not available within a given publication, DLA Energy ( formerly DESC ) calculated averages, carried to six decimal places, rounded, will be used. For prices in metric tons, if averages are not available within a given publication, DLA Energy (formerly DESC) calculated averages, carried to two decimal places, rounded, will be used. For domestic contract line items, conversions from metric tons to gallons shall be utilized through the CONVERSION FACTORS clause for the applicable publication reference product. Barrels shall be converted using the CONVERSION FACTORS instruction for barrels to gallons. If this clause requires quantity conversion for economic price adjustment purposes, the conversion factors for applicable products, as specified in the DLA Energy ( formerly DESC ) Conversion Factor Instruction, apply unless otherwise specified in the Schedule in the Table (f) below. Details on the specific products covered and the method of conversion can be found in Instruction M55 (DLA Energy ( formerly DESC ) MAR 2007), which is included in solicitations and resulting contracts when conversion factors are required.

(iii)  For domestic contract line items, the final calculated reference price, as well as any intermediary arithmetical calculations, will consist of a number including six decimal places, rounded. For overseas contract line items, the final calculated reference price, as well as any intermediary arithmetical calculations, will consist of a number including two decimal places, rounded.

(iv)  For domestic contract line items, the final adjusted unit price will always consist of a number including six decimal places, rounded. For overseas contract line items, the final adjusted unit price will always consist of a number including two decimal places, rounded.

(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 paragraphs (f), Excusable Delays, and (m), Termination for Cause, of the CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS clause 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 ADJUSTMENTS: The Contractor agrees that the total increase in any contract unit price shall not exceed {BUYER FILL-IN APPLICABLE UPWARD CEILING}____________ percent (%) of the award price, except as provided hereafter:

(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 an appropriate explanation and documentation as required by the Contracting Officer.

(ii)  If an actual increase in the reference 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.

(5)  REVISION OF REFERENCE PRICE: In the event--

(i)  Any applicable reference price (market price indicator) is discontinued or its method of derivation is altered substantially; or

(ii)  The Contracting Officer determines that the reference price 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 or just prior to the date the indicator was discontinued, altered, or began to consistently and substantially fail to reflect market conditions. Failure to agree on an appropriate substitute shall be considered a "dispute" within the meaning of paragraph (d), Disputes, of the CONTRACT TERMS AND CONDITIONS -- COMMERCIAL ITEMS clause of the contract.

(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, and 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)  TABLE: The following publication(s)/date(s) apply: {BUYER FILL-IN OF APPLICABLE INFORMATION}.

NOTE TO BUYER: - select one of the following choices:

(1)  Insert the following table when the solicitation does not contain numerous items:

Base reference Base reference Base reference Base reference

Item no. publication heading date price

or

(2) (at Contracting Officer's discretion) Insert for Ships' Bunker programs when the solicitation is for a major program buy:

"See the continuation pages to this clause at Attachment C for a listing of each line item, the applicable publications for each line item, as well as the applicable reference heading, base reference date and base reference price."

The Contracting Officer shall insert the appropriate table at Attachment C.

(End of Clause)