B-310065, NAC International, Inc., November 21, 2007

B-310065 Nov 21, 2007 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights 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. View Decision 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.