TITLE: B-310065, NAC International, Inc., November 21, 2007
BNUMBER: B-310065
DATE: November 21, 2007
****************************************************
B-310065, NAC International, Inc., November 21, 2007

   DOCUMENT FOR PUBLIC RELEASE
   The decision issued on the date below was subject to a GAO Protective
   Order. This redacted version has been approved for public release.

   Decision

   Matter of: NAC International, Inc.

   File: B-310065

   Date: November 21, 2007

   Daniel F. Stenger, Esq., Michael D. McGill, Esq., and Deborah A. Raviv,
   Esq., Hogan & Hartson LLP, for the protester.

   Robert H. Thompson, Esq., and Jarom T. Smartt, Esq., Tennessee Valley
   Authority, for the agency.

   Jonathan L. Kang, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. The Tennessee Valley Authority (TVA), while a federal agency subject to
   GAO's bid protest jurisdiction under the Competition in Contracting Act
   (CICA), has its own statute, the TVA Act, which governs the agency's
   procurement procedures; as a result, the TVA is not subject to CICA's
   requirement to obtain "full and open competition" and is not required to
   comply with the Federal Acquisition Regulation.

   2. Protest challenging terms of solicitation as unduly restrictive is
   denied where agency had reasonable basis to conclude it would receive
   proposals that satisfied the agency's statutory requirement to obtain
   "adequate competition."

   DECISION

   NAC International, Inc. protests the terms of request for proposals (RFP)
   No. SWO-200701, issued by the Tennessee Valley Authority (TVA) for
   provision of storage units for spent nuclear fuel at two TVA facilities.
   NAC contends that the solicitation is unduly restrictive of competition
   because its schedule of initial deliveries can only be met by the
   incumbent contractor.

   We deny the protest.

   BACKGROUND

   The TVA is a federal corporation which, among other responsibilities,
   provides power for a large area of the southeastern United States. The TVA
   operates various power plants including the Brown's Ferry Nuclear Plant,
   near Decatur, Alabama, and the Sequoyah Nuclear Plant, near Chattanooga,
   Tennessee. Both plants are licensed and operated in accordance with
   regulations issued by the Nuclear Regulatory Commission (NRC). The TVA's
   facilities at Brown's Ferry and Sequoyah are powered by enriched uranium
   that must be replaced after its useful energy is expended and subsequently
   stored at an on-site independent spent fuel storage installation (ISFSI).
   These installations are also regulated by the NRC. See 10 C.F.R. part 72
   (2007). The "spent" uranium fuel is transferred from the power reactors
   into cooling pools, and then transferred to "dry cask" storage units,
   which consist of steel interior canisters into which the fuel and an inert
   gas is placed, and a "overpack" casing into which the interior casing is
   placed. These dry cask units are then moved from the pool area to a
   storage pad at the ISFSI through use of a "transfer cask" during a planned
   "campaign" event.

   Dry casks must receive a certificate of compliance (COC) from the NRC
   before they may be used for storage of spent nuclear fuel. A COC addresses
   a cask's technical specifications including, for example, the type and
   amount of fuel to be stored and the materials and manufacturing methods
   for the cask. A COC is issued without regard to the specific site where a
   cask may be used, but contains conditions for the cask's use. See 10
   C.F.R. sections 72.230-72.248. The licensee of a nuclear plant must
   determine that the terms of a cask's COC are compatible with the
   conditions at the nuclear plant where it is to be used. 10 C.F.R. sect.
   72.212(b)(2). If a plant licensee, such as TVA, intends to change the type
   of cask used for storage of spent fuel at its ISFSI, the licensee must
   conduct a new evaluation to determine whether the new cask COC is
   compatible with the site conditions. See id.

   The TVA currently receives its dry casks for its Brown's Ferry and
   Sequoyah facilities from Holtec International under a contract that was
   competitively awarded in 2000, and was subsequently extended beyond its
   original term; the contract is due to expire following deliveries in 2008.
   In determining how to meet its future requirements for these facilities,
   the TVA considered extending Holtec's contract, but determined that
   "recompetition was necessary given that the original contract term has
   already been exceeded and that future sole source extension might allow
   Holtec to charge unreasonable prices." Contracting Officer's (CO)
   Statement at 3. The agency prepared and circulated a preliminary
   acquisition plan for its cask requirements in January 2006. Agency Report
   (AR), Tab 57, Presentation on Cask RFP. The TVA then conducted market
   research with the [deleted] companies considered to represent the
   potential market for dry casks: NAC, Holtec and [deleted].

   As relevant here, NAC expressed concern to the TVA in March 2006 regarding
   potential challenges that a non-incumbent would face in providing new
   casks for use at the TVA facilities, as follows:

     We believe there are no technical issues associated with the transition
     that can't be directly solved, but a plant transitioning its dry storage
     technology would typically plan an [deleted] month cycle from the
     contract execution date through the initial equipment delivery dates.
     Subsequent system orders can easily be delivered within a [deleted]
     month cycle time. Clearly, there are several one-time issues to be
     addressed when deploying a different storage technology, which result in
     some additional work for TVA and its supplier. These items are not
     significant obstacles, but require an adequate amount of time to
     accomplish, and would extend the typical system delivery cycle. We
     believe we can satisfactorily address all of these issues individually,
     but the schedule risk increment for either [deleted] or NAC is
     attributable exclusively to additional work that must be accomplished
     and to additional equipment that must be delivered and integrated to
     effect the transition. NAC is concerned that this schedule risk would
     likely result in the current supplier being the only bidder who can meet
     your current schedule with an acceptable level of delivery risk to TVA.

   AR, Tab 52, Email from NAC to CO, Mar. 15, 2006.

   In October 2006, the TVA invited potential offerors to make presentations
   regarding the proposed procurement. As relevant here, [deleted]'s
   presentation stated that it was the "ONLY vendor that has gone from
   contract award to fuel loading of a NEW ISFSI in less than 24 months. We
   have now done it [deleted] times." AR, Tab 44, [deleted] Presentation, at
   13. [Deleted] listed four examples of such transfers, two with durations
   of 23 and 24 months, and two with durations of 18 months each. Id. As the
   TVA notes, an ISFSI is the entire facility for storage of spent nuclear
   fuel, and the process that [deleted] referred to in its presentation was
   the establishment of a new facility. Supp. AR at 11. Thus, the agency
   understood [deleted] to mean that the company would require less time to
   achieve a transition to a new cask model, as compared with the time
   required to establish an entirely new ISFSI. Id. In particular, the agency
   understood [deleted]'s presentation's reference to "contract award to fuel
   loading" to mean that actual delivery of the dry casks would be less than
   the times identified, as casks needed to be delivered prior to loading. CO
   Statement at 4.

   In its October presentation, NAC again expressed concerns regarding the
   transition effort associated with the selection of a non-incumbent
   contractor, including cost, compatibility of an offeror's COC with
   existing site conditions, and availability and rental of support
   equipment. AR, Tab 46, NAC Presentation, Oct. 17, 2006, at 22. NAC did
   not, however, identify any particular time frame that it believed would be
   required for a non-incumbent to perform the transition and initial
   delivery of requirements. Instead, NAC stated that its proposed Magnastor
   cask model, was "similar to [Holtec's] current system," that the COC
   verification process would be "very similar," and that NAC anticipated
   that it could [deleted]. Id. at 26.

   Although NAC has COCs for two existing cask models, see 10 C.F.R. sect.
   72.214, its presentation to the TVA addressed [deleted] its Magnastor cask
   model, which does not yet have a COC. NAC stated in its presentation that
   it expected a draft COC from the NRC by January 2007. Id. at 16. In
   January 2007, however, NAC withdrew its COC application for the Magnastor
   model due to NRC concerns; NAC stated that it would resubmit the
   application at a later date. AR, Tab 36, Email from NAC to CO, Jan. 31,
   2007.

   On June 14, 2007, the TVA issued the solicitation, seeking dry casks
   and/or pool-to-pad transfer services. The RFP anticipates award of a
   fixed-price contract with a base period of 5 years, with an option for an
   additional 5-year term. The agency advised offerors that it anticipated
   making a contract award by the end of December 2007. CO Statement at 6.
   The RFP's schedule of initial deliveries requires the contractor to
   provide an initial delivery of casks by May 4, 2009. RFP at 53, attach.
   7.2.3. The RFP states that the contractor will be required to support the
   TVA in verifying that the cask COC is consistent with the facility site
   conditions and the TVA's licenses. RFP, Procurement Specification, at 10,
   sect. 1.5. The RFP lists 21 items that must be submitted by the contractor
   to the TVA for review in the verification process. Id. sect. 1.6.1.2. The
   RFP also "strongly encourage[s]" offerors to submit alternative proposals,
   provided that the alternatives have received a COC by no later than
   January 2008. Id. sect. 1.4.

   The initial due date for proposals was July 31, 2007. On July 2, a NAC
   representative called the CO and advised that it would not be able to
   submit a proposal because the company would not likely receive a COC for
   its Magnastor cask until [deleted]. On July 10, NAC requested that the
   time for proposals be extended; the agency extended the due date until
   August 21. On August 17, NAC filed this protest with our Office. The
   agency received proposals from [deleted] and Holtec by the August 21 due
   date; NAC did not submit a proposal.

   DISCUSSION

   NAC contends that the TVA has unreasonably restricted competition because
   only the incumbent can meet the RFP's schedule of initial deliveries. The
   protester also argues that the competition is unreasonably restricted
   because the RFP's provisions for submitting an alternative proposal do not
   allow sufficient time for submission, and because the anticipated length
   of the contract is too long. For the reasons discussed below, we conclude
   that the RFP does not inherently preclude non-incumbents from meeting its
   requirements, and that TVA has not otherwise limited competition in a
   manner that warrants sustaining the protest.[1]

   As a threshold matter, the parties disagree about the application of the
   Competition in Contracting Act of 1984 (CICA) to TVA procurements, and
   specifically about the standard for competition that applies to a TVA
   procurement.[2] As a general rule procuring agencies are required to
   obtain full and open competition in the procurement of supplies and
   services through the use of competitive procedures in accordance with the
   Federal Acquisition Regulation (FAR). 41 U.S.C. sect. 253(a)(1)(A). An
   exception to this requirement exists for "procurement procedures otherwise
   expressly authorized by statute." 41 U.S.C. sect. 253(a)(1).

   Procurements for the TVA are governed by Section 9(b) of the TVA Act,
   which states that the agency shall procure its requirements as follows:

     All purchases and contracts for supplies or services, except for
     personal services, made by the [TVA], shall be made after advertising,
     in such manner and at such times sufficiently in advance of opening
     bids, as the [TVA] Board shall determine to be adequate to insure notice
     and opportunity for competition.

   16 U.S.C. sect. 831h(b); see also Sylvest Mgmt. Sys, Corp., B-275935,
   B-275935.2, Apr. 21, 1997, 97-1 CPD para. 172 at 3.

   With regard to the term "adequate competition," the TVA Board determined,
   consistent with its authority under the FPASA, that the agency "provides
   `notice and opportunity for competition' when TVA solicits offers in such
   a manner that it is reasonable to expect that two or more offerors will
   submit acceptable offers competitive with market prices." AR, Tab 66, TVA
   Code IV Procurement, Feb. 13, 1991. Further, the Board determined that it
   is "impracticable for TVA's procurement activities to be subject to the
   procurement regulations issued by the General Services Administration
   under the Federal Property and Administrative Services Act or to the
   Federal Acquisition Regulations." Id.

   In sum, although the TVA is an agency subject to the bid protest
   jurisdiction of our Office under CICA, the TVA is exempt from the full and
   open competition standard under CICA and the FAR because the agency's
   procurement procedures are authorized by a separate statute. When the
   standard requirements for full and open competition under CICA and the FAR
   do not apply to procurements that are within our Office's jurisdiction, we
   will review agency actions to determine whether they were reasonable and
   consistent with any statutes and regulations that do apply. Quick! The
   Printer, B-252646, July 20, 1993, 93-2 CPD para. 42, at 4. We will
   therefore review this protest under the "adequate competition" standard
   discussed above.[3]

   A. TVA's Reasonable Expectation of Receiving Adequate Competition

   NAC contends that TVA did not have a reasonable basis to expect, based on
   its exchanges with potential offerors, that it would receive two or more
   acceptable proposals and thereby satisfy its requirement for adequate
   competition. NAC does not dispute that the agency had a reasonable
   expectation of receiving an acceptable proposal from the incumbent,
   Holtec. Thus, under the "adequate competition" standard discussed above,
   the TVA would satisfy its requirement for competition if it had a
   reasonable expectation of receiving an acceptable proposal from at least
   one additional offeror. The protester argues that the agency's expectation
   of receiving an acceptable proposal from NAC or [deleted] was unreasonable
   because: (1) the solicitation schedule for initial delivery is so
   restrictive that only the incumbent can perform, and (2) the actual
   exchanges with offerors did not provide the TVA a reasonable basis to
   expect receiving an acceptable proposal from NAC or [deleted]. In this
   regard, NAC contends that a non-incumbent will require a minimum of 22
   months "for any chance" to meet the delivery schedule of initial
   deliveries, and at least 30 months for a "reasonable certainty" of meeting
   the schedule. Protest at 4. For the reasons discussed below, we conclude
   that the agency's expectation of competition at the time the solicitation
   was issued was reasonable.[4]

     1. Schedule of initial deliveries

   As an initial matter, the parties disagree as to the length of the
   schedule of initial deliveries under the solicitation. NAC contends that
   the solicitation calls for delivery less than 17 months from the
   anticipated contract award, while the TVA contends that the delivery
   schedule provides for 17 to 18 months. As discussed above, the agency
   advised offerors that the contract would be awarded by late December 2007,
   and the RFP states that first delivery is due on May 4, 2009. Thus, the
   record supports the protester's interpretation of an approximately
   16.5-month schedule of initial deliveries.[5]

   As for the specific obstacles for non-incumbents under the solicitation,
   NAC identifies two primary issues that affect the schedule of initial
   deliveries.[6] First, the protester contends that the TVA's approval of a
   non-incumbent offeror's cask for use at the facilities will require, among
   other things, a detailed submission of data by the contractor and analysis
   of the cask's COC by the TVA to ensure that the site conditions at each
   facility are compatible with the COC. Although the protester argues that
   this process will not allow a non-incumbent sufficient time to meet the
   schedule of initial deliveries, the protester merely cites general
   concerns regarding difficulties in the process.[7]

   For example, NAC argues that several statements by the CO demonstrate that
   the process of approving a cask for use at a storage facility will be
   difficult. In particular, the CO's response to the protest included the
   following comments regarding the COC validation process:

     The use of casks for storage requires both the cask supplier and the
     plant licensee (including TVA) to perform rigorous, expensive
     engineering and documentation [efforts] to comply with their respective
     obligations with NRC rules at 10 C.F.R. part 72. . . .

     If a plant licensee intends to change from one cask model to another,
     the site evaluation must be reperformed with reference to the intended
     new model. Depending on the circumstances, reevaluation might be
     somewhat less involved than the initial evaluation, but it is still a
     significant effort.

   CO Statement at 2-3.

   Although the protester contends that the CO's acknowledgement of a
   "significant" level of effort implies a lengthy process for validating a
   non-incumbent's cask and COC, the CO's statement does not indicate a
   specific time frame. Thus, the CO's statement here does not directly
   support the protester's argument that non-incumbents will be unable to
   meet the schedule of initial deliveries.

   Second, NAC points to the list of 21 items that must be submitted by the
   contractor to the TVA for review in validating a new cask's COC. RFP,
   Procurement Specification, sect. 1.6.1.2. NAC argues that the list
   represents a lengthy process that will prevent a non-incumbent contactor
   from having enough lead-time to begin the manufacturing process and meet
   the initial delivery deadline.[8] NAC cites as support for its argument
   NRC guidance that the COC validation, detailed in 10 C.F.R. sect. 72.212,
   will require 18 staff-months of effort. See Protester's Comments on the
   Supp. AR, at 5 (citing NRC "General License Considerations," available at:
   http://www.nrc.gov/waste/spent-fuel-storage/sf-storage-licensing/license-considerations.html.)

   As the agency notes, however, NAC does not distinguish in its arguments
   between the effort needed for the initial establishment of a new ISFSI, as
   opposed to the less onerous requirements for changing the dry cask model
   used in an established ISFSI. In this regard, the TVA states that the
   approval process required for a change of casks at an established ISFSI is
   less complex and requires less time than the initial establishment of a
   new ISFSI. Supp. AR at 11-12. Although NAC argues that many of the
   requirements that the TVA must undertake in evaluating a new storage cask
   are the same as those required for establishment of an ISFSI, the
   protester fails to meaningfully rebut the agency's position. In this
   regard, the protester does not explain whether the 18 staff-month
   timeframe cited in the NRC guidance is related to an initial ISFSI
   establishment and cask COC validation, or a reevaluation for the
   transition to a different cask; in fact, the NRC guidance appears to
   address the initial process of approving an ISFSI, and therefore addresses
   more requirements than those that may be required under the instant
   solicitation. On this record, we conclude that the protester has not
   provided a sufficient basis to challenge the reasonableness of the RFP's
   schedule of initial deliveries. A protester's mere disagreement with the
   agency's judgment concerning the agency's needs and how to accommodate
   them does not show that the agency's judgment is unreasonable. USA
   Fabrics, Inc., B-295737, B-295737.2, Apr. 19, 2005, 2005 CPD para. 82 at
   5.

   Next, NAC argues that, in addition to the 6 to 12 months required for
   approving a non-incumbent's COC for use at the TVA facilities, the
   fabrication process will require a minimum of 16 to 20 additional months
   for a non-incumbent to complete--resulting in, as discussed above, an
   overall 22 to 30 month minimum time for a non-incumbent to meet the
   schedule for initial delivery. The protester identifies two aspects of the
   fabrication process it contends will contribute to long lead-times and
   delay a non-incumbent's performance: manufacturing a new transfer cask,
   and the availability of steel. The transfer cask is used to transport each
   dry cask from the pool storage area to the outdoor storage pad.
   Protester's Comments on AR, at 11; Supp. AR at 8.

   Again, however, the protester does not clearly explain why that length of
   time is required. NAC's argument that the fabrication of a transfer cask
   will require 16 to 20 months appears inconsistent with its earlier
   statements made during the agency's market research. As discussed above,
   NAC advised the agency in March 2006 that NAC believed that a "typical"
   change in cask technology would take [deleted] months from contract award
   to initial delivery. AR, Tab 52, Email from NAC to CO, Mar. 15, 2006. Even
   assuming that NAC intended to convey concerns to the agency regarding
   risks that would make the TVA procurement other than "typical," it does
   not appear that NAC's argument that non-incumbents will require a minimum
   of 22 to 30 months (comprised of the 6- to 12-month COC validation
   process, followed by the 16- to 20-month transfer cask fabrication) can be
   reconciled with NAC's earlier estimate of a typical [deleted]-month
   delivery timeline.[9]

   As for the dry storage casks themselves, NAC also argues that the world
   market for steel is volatile and that the agency should have known that a
   non-incumbent contractor would not be able to meet the schedule of initial
   deliveries because of the long lead-times required to obtain supplies. The
   agency contends that this issue was not raised during exchanges with
   potential offerors, and that, in addition, NAC's own presentation to the
   agency suggested that there would not be such supply problems. See AR, Tab
   46, NAC Presentation, at 27 (indicating that NAC's "[deleted].")

   With regard to both of these fabrication lead-time issues, the protester
   does not demonstrate that the solicitation schedule is impossible for a
   non-incumbent to meet or that the agency had reason to doubt that it would
   receive two or more acceptable proposals. On this record, we find no basis
   to sustain the protest.

     2. Exchanges with Offerors

   Next, NAC argues that the TVA's exchanges with prospective offerors did
   not provide the agency a reasonable expectation that it would receive at
   least two acceptable proposals. As discussed above, the agency received
   presentations from NAC, Holtec, and [deleted]. The protester contends that
   the agency should not have expected acceptable proposals from either NAC
   or [deleted] in light of: (1) obstacles for non-incumbents in meeting the
   schedule of initial deliveries, and (2) the absence of clear indications
   from NAC or [deleted] that either company could meet the schedule.

   The first argument is addressed by our discussion above, in which we
   conclude that the protester has not demonstrated that the RFP inevitably
   precludes non-incumbent offerors from competing. As to the second
   argument, the record supports the agency's conclusion that [deleted] would
   submit an acceptable proposal. In this regard, [deleted]'s presentation to
   the agency in October 2006 did not express any reservations or concerns
   regarding the schedule of initial deliveries. To the contrary, the company
   stated that it had accomplished the establishment of a new ISFSI (which,
   as discussed above, the agency viewed as a more difficult undertaking) in
   18 months. AR, Tab 44, [deleted] Presentation, at 13. Additionally,
   [deleted] stated that its proposed solution would allow the TVA to achieve
   the transition to a new cask without changes to the ISFSI's existing
   design. Id. at 39-43. On this record, we think that the agency had a
   reasonable expectation that [deleted] would submit an acceptable proposal.
   In light of the apparent willingness of both Holtec and [deleted] to
   submit proposals based on the proposed schedule, we conclude that the
   agency had a reasonable basis to conclude that it would obtain "adequate
   competition."[10]

   B. Alternative Proposals

   NAC next argues that the solicitation's provisions for submitting an
   alternative cask model are too restrictive because offerors must have a
   COC for such models by January 2008. The protester contends that this date
   is arbitrary and will impede the TVA's ability to get the best value for
   its requirements.

   The TVA states that the request for alternative proposals was intended to
   allow offerors to submit newer technological solutions for which COCs had
   not already been granted, but also ensure that the agency could still meet
   its requirements for delivery. CO Statement at 5. The agency argues that
   any delay longer than this date would threaten the COC validation process
   and the schedule of initial deliveries as a whole, because the agency
   could not proceed with its required review without knowing whether the
   contractor's COC would be approved. Id. The protester's disagreement with
   the agency's judgment here provides no basis to sustain the protest. USA
   Fabrics, Inc., supra.

   C. Duration of the Contract

   Finally, NAC contends that the duration of the anticipated contract is
   unreasonably long. The solicitation anticipates award of an initial
   contract with a 5-year term, with an option for the agency to extend the
   contract an additional 5 years. The protester argues that the duration
   selected by the agency will lock the agency into a long-term contract that
   will impede the agency's ability to benefit from future innovation. The
   TVA explains that it chose this term based on a balancing of interests.
   The agency states that a longer contract term allows non-incumbents to be
   more competitive because the costs would be lower on a per-unit basis over
   the course of a longer contract. CO Statement at 4. On the other hand, a
   longer contract term could interfere with the agency's ability to adopt
   newer technologies by locking the agency into a long-term contract. Id.
   Again, the protester's disagreement with the agency's judgment here
   provides no basis to sustain the protest. USA Fabrics, Inc., supra.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

   ------------------------

   [1] NAC's protest argues that the schedule of initial deliveries is so
   restrictive that only the incumbent can meet it, or meet it without
   significant schedule risk. Protest at 1-2. Although the protest seemingly
   addresses two issues, i.e. impossibility and significant schedule risk,
   the protester essentially contends that a non-incumbent cannot perform. In
   this regard, NAC argues that the schedule of initial deliveries is set for
   16.5 months after award, whereas a non-incumbent will require a minimum of
   22 to 30 months to deliver the first casks. Protest at 4. Thus, the issues
   of impossibility or significant schedule risk pose essentially the same
   question: whether the TVA should have reasonably expected to receive
   acceptable proposals from any offeror other than Holtec.

   [2] TVA also argues that it is not subject to the bid protest jurisdiction
   of our Office under CICA. Our Office has jurisdiction under CICA to hear
   protests related to the award of contracts by federal agencies. 31 U.S.C.
   sect. 3551(3). The Federal Property and Administrative Services Act of
   1949 defines the term "federal agency" as including any "executive
   agency," which is in turn defined as including any executive department or
   independent establishment in the executive branch of the government, and
   any wholly-owned government corporation. 40 U.S.C. sect. 102(4), (5). The
   TVA is a wholly-owned federal corporation, see 16 U.S.C. sect. 831, and is
   therefore a federal agency subject to the bid protest jurisdiction of our
   Office. We have reached this conclusion in several decisions. See Monarch
   Water Sys., Inc., Aug. 8, 1985, 85-2 CPD para. 146 at 5-9; Sylvest Mgmt.
   Sys, Corp., B-275935, B-275935.2, Apr. 21, 1997, 97-1 CPD para. 172 at 3.

   [3] NAC argues that notwithstanding the TVA's determination that its
   statutory requirement to obtain adequate competition is satisfied by an
   expectation of receiving two or more acceptable proposals, the agency is
   still obligated to provide a willing offeror an opportunity to compete by
   avoiding unduly restrictive solicitation requirements. The protester's
   argument, however, suggests a superseding requirement to maximize
   competition that would render meaningless the "two or more" standard
   adopted by the TVA.

   [4] The protester notes, and we agree, that the record contains almost no
   contemporaneous documentation of the agency's rationale for its judgment
   that it would receive adequate competition. The rationale, instead, is
   provided in the agency's response to the protest. Because this protest
   challenged whether the agency had a reasonable basis for issuing the
   solicitation with the allegedly restrictive provisions, as opposed to
   subjective proposal evaluations, we will consider the entire record, e.g.
   the agency's market research and the agency's response to the protest.

   [5] The agency states that in response to a question from an offeror, the
   agency advised that the delivery schedule could be delayed by 2 to 3
   months. AR, Tab 4, Agency Response to Offeror Questions, Aug. 14, 2007.
   NAC contends that the agency's response did not clearly modify the RFP. We
   do not think that this issue has any effect on the merits of the protest
   because, even if the agency had expressly modified the solicitation, the
   schedule of initial deliveries would still be less than the minimum 22
   months NAC claims is required for a non-incumbent to perform the contract.

   [6] In pursuing this protest, NAC has raised various collateral issues
   regarding the schedule of initial deliveries, as well as other areas of
   its protest. We have reviewed all of the protester's arguments, and
   conclude that none provides a basis for sustaining the protest.

   [7] NAC's only attempt to estimate the actual times required for efforts
   associated with meeting the schedule of initial deliveries is found in a
   chart in its comments on the agency's supplemental report. Protester's
   Comments on Supp. AR at 2. This chart purports to identify a range time
   for various events, and concludes that a non-incumbent would need at least
   26 months to meet the schedule (a length of time different than identified
   elsewhere in its protest). Id. The protester does not, however, clearly
   explain how it arrived at the various times illustrated in this chart and,
   more importantly, does not explain the various assumptions underlying the
   start times for milestones in the chronology. Because this chart lacks a
   clear explanation for its assumptions, we do not think it provides
   persuasive support for the protester's arguments.

   [8] The parties also disagree as to whether COC validation stage must be
   done first, or whether some tasks can begin prior to full approval. The
   TVA states, and NAC largely concedes, that portions of the cask
   fabrication process can begin prior to the TVA's final evaluation and
   approval. CO Statement at 6; see Protester's Comments on Supp. AR, at 10.

   [9] The only specific change in the materials market that NAC cites that
   would affect the fabrication time for a transfer cask is what the
   protester contends is a relatively recent increase of 6 to 12 weeks in the
   lead-time required for steel. Protester Comments on the AR at 14. This
   change alone does not appear to account for the discrepancy between NAC's
   estimates for the time required to meet the schedule.

   [10] In light of our conclusion here, we need not address whether the
   agency had a reasonable expectation of receiving a proposal from NAC.