52.216-9075 ECONOMIC PRICE ADJUSTMENT - PUBLISHED MARKET PRICE -SHIPS BUNKERS - (JUL 2010).

As prescribed at DLAD 16.203-4(a) (2) (105), insert the following clause:

ECONOMIC PRICE ADJUSTMENT - MARKET PRICE INDICATORS - SHIPS' BUNKERS (JUL 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 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 in the calendar week of 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 Notification (PA) modification issued.

(3)  Current unit price means the most current price in effect for the week 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 through 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.

(i)  PLATT'S BUNKERWIRE AND BUNKERFUELS REPORT. For items employing Platt's Bunkerwire and Bunker Fuels Report, the adjusting reference price in effect on the date of delivery shall be that item's reference price effective (and normally published) on the Tuesday of the calendar week in which the delivery is made, or, in the event there is no publication on Tuesday of that week, it shall be the item's reference price as last previously published prior to that Tuesday.

(ii)  PLATT'S OILGRAM PRICE REPORT. For items employing Platt's Oilgram Price Report, Spot Price Assessment, the adjusting reference price in effect on the date of delivery shall be that item's reference price in effect for the Monday of the calendar week in which the delivery is made, or, in the event there is no price for that Monday, it shall be the item's reference price in effect for the date nearest in time prior to that Monday. For items employing Platt's Oilgram Price Report, 5 Day Rolling Average, the reference price in effect on the date of delivery shall be the average of that item's reference price effective for 5 consecutive days ending Friday prior to the calendar week in which the delivery is made. In the event there is no price for any one or more of those 5 days, the reference price shall be calculated by averaging the last 5 days for which prices were in effect on or prior to that Friday.

(iii)  AXXIS. For items employing AXXIS, the adjusting reference price shall be that item's reference price in effect for the Thursday of the calendar week prior to the date that delivery is made. In the event there is no price for that Thursday, it shall be the item's reference price in effect for the date nearest in time prior to that Thursday.

(iv)  OIL PRICE INFORMATION SERVICE (OPIS). For items employing OPIS, the adjusting reference price in effect on the date of delivery shall be that item's reference price published, in print, on the Monday of the calendar week in which delivery is made. In the event there is no publication in that week, it shall be the item's reference price as last previously published in the print edition. NOTE: Generally, the Monday print edition of OPIS contains the prices in effect for the prior Thursday. However, the Monday print edition of OPIS may contain prices for a date other than the prior Thursday. In any event, the prices appearing in the Monday print edition shall have control.

(v)  When a combination of two different publications is utilized, the applicable reference dates will be stated in paragraph (f) below, unless paragraph (f) references an attachment, in which case the reference dates will be provided in that attachment .

(vi)  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 correct 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 based on the low and high prices. 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 calculated based on the DLA Energy ( formerly DESC ) CONVERSION FACTORS Instruction for the applicable publication reference product. Barrels shall be converted using the DLA Energy ( formerly DESC ) CONVERSION FACTORS Instruction line for barrels to gallons. The above shall apply unless cited differently in the Table in (f) below.

(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 fails 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. If the parties fail to agree on an appropriate substitute, the matter shall be resolved in accordance with 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 representative 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)