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.