Fire-Trol Holdings, LLC, B-293103; B-293254, February 2, 2004

Fire-Trol Holdings, LLC, B-293103; B-293254, February 2, 2004 TITLE: Fire-Trol Holdings, LLC, B-293103; B-293254, February 2, 2004 BNUMBER: B-293103; B-293254 DATE: February 2, 2004 ********************************************************************** Fire-Trol Holdings, LLC, B-293103; B-293254, February 2, 2004 DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This version has been approved for public release. Decision Matter of: Fire-Trol Holdings, LLC File: B-293103; B-293254 Date: February 2, 2004 Paul F. Dauer, Esq., and Jennifer L. McCready, Esq., Best Best & Krieger, for the protester. John G. Horan, Esq., and Jason A. Carey, Esq., McDermott, Will & Emery, for Astaris, LLC, an intervenor. Marion T. Cordova, Esq., Department of Agriculture, for the agency. Edward T. Goldstein, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Protest that agency improperly included competitor*s products on qualified products lists (QPL) is denied where agency reasonably determined that re-testing of modified or changed products was unnecessary before listing those products on the QPL and where the agency reasonably determined the products complied with its qualification requirements. 2. Agency*s inclusion of patent indemnity clause in solicitations is unobjectionable where the solicitations are for supplies that are sold or offered for sale to the public in the commercial market. DECISION Fire-Trol Holdings, LLC protests the inclusion of a competitor*s products on the qualified products lists (QPL) under invitation for bids (IFB) Nos. 49-03-10, 49-03-15, and 49-03-16 and under request for proposals (RFP) Nos. 49-03-09, 49-03-13, and 49‑03-14, issued by the United States Department of Agriculture (USDA), Forest Service. Fire-Trol contends that the protested products, manufactured by Astaris, LLC, fail to satisfy several of the specifications required for approval. Fire-Trol also challenges the agency*s inclusion of a patent indemnity clause in the solicitations. We deny the protests. Background The Forest Service purchases chemical-based, water-soluble, long-term fire retardants for use in preventing and suppressing *wildland* fires throughout the United States. The retardants at issue in this case are those that are dropped from the air by fixed-wing aircraft (that is, aircraft other than helicopters). Generally speaking, a retardant product has four main components: (1) its salt content, which largely determines the product*s combustion-retarding effectiveness; (2) its colorant; (3) its corrosion inhibitor; and (4) its thickening agent. The fire retardant products used by the Forest Service are manufactured and supplied in various forms with different properties. Some retardant products are supplied in a powder form (dry concentrate), which is mixed with water prior to use. Others are supplied in a liquid form (wet concentrate), also referred to as liquid concentrate products, and are diluted with water prior to use. A given liquid concentrate product may be available in different concentrations; however, once diluted, they *should be identical in concentration and performance.*[1] Agency Report (AR) Tab AO, Agency Memorandum of Law at 4. Fire retardant products also have varying color characteristics. Some are uncolored, while others are classified as colored due to the fact that they contain iron oxide. Generally, retardant products that contain iron oxide have an *R* designation since iron oxide imbues the product with a reddish color. Retardants with an *F* designation are those that do not contain iron oxide but have what is referred to as a fugitive color. Fugitive products are visible for a short period of time but quickly fade into the landscape. In addition, products have varying degrees of viscosity. *Unthickened* products (essentially water-like) have a lower viscosity than *thickened* products, which contain some form of thickening agent such as gum and are generally categorized as of high, medium, or low viscosity, depending upon the amount of thickening agent in the product.