Not quite - nvidia paid for two retail 290Xes to be shipped directly from newegg to Tech Report. Which means that, in an effort to highlight a difference between press sample and retail cards, nvidia gave AMD two sales of their highest end, highest margin, graphics card. Somehow, I doubt AMD are too bothered about that
What they should be bothered about is that fact that there is clearly a difference in behaviour between TechReport's press sample and the retail cards. That could be random variance - AMD shipped out press samples and TR happened to get a good one - but without testing every single 290X press sample using the same methodology and looking in great detail there's no way of knowing. AMD were clearly right about the fans on retail samples not spinning at the correct RPM when set by duty cycle, as this is fixed in the driver update which sets the RPM directly. But it looks from TR's figures like that's not the full story - at least with their original press sample.
My only real concern with TR's testing is that they use quiet mode rather than uber mode - seems moot to complain about a card having lower performance when you're choosing to run it in the mode that deliberately sacrifices performance. If the performance of retail cards was lower in uber mode, then you've got more of an issue. But they didn't test that