                      NOTE: This disposition is nonprecedential


 United States Court of Appeals for the Federal Circuit

                                     2006-1544



                       THOMAS CREEK LUMBER & LOG CO.,

                                                    Appellant,

                                          v.


                  Mike Johanns, SECRETARY OF AGRICULTURE,

                                                    Appellee.




      Joseph A. Yazbeck, Jr., Yazbeck Cloran & Hanson, LLC, of Portland, Oregon,
argued for appellant.

       Kirk T. Manhardt, Senior Trial Counsel, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for appellee.
With him on the brief were Peter D. Keisler, Assistant Attorney General, and David M.
Cohen, Director.

Appealed from: United States Department of Agriculture Board of Contract Appeals

Administrative Judge Joseph A. Vergilio
                     NOTE: This disposition is nonprecedential.


     United States Court of Appeals for the Federal Circuit


                                     2006-1544



                       THOMAS CREEK LUMBER & LOG CO.,

                                                             Appellant,

                                          v.

                  Mike Johanns, SECRETARY OF AGRICULTURE,

                                                              Appellee.



                         __________________________

                          DECIDED: March 29, 2007
                          __________________________


Before MAYER, Circuit Judge, PLAGER and CLEVENGER, Sr. Circuit Judges.

PER CURIAM.

      Thomas Creek Lumber & Log Company (“Thomas Creek”) appeals the decision

of the Department of Agriculture Board of Contract Appeals (“the board”), which

affirmed the denial of Thomas Creek’s claim by the Department of Agriculture (“DOA”).

Thomas Creek Lumber & Log Co., AGBCA No. 2005-132-1 (Apr. 4, 2006). We affirm.

      We review decisions of the board in accordance with the Contract Disputes Act

of 1978 (“CDA”), 41 U.S.C. §§ 601-613.         Under the CDA, we review the board’s

conclusions of law de novo. Id. § 609(b). We may not set aside the board’s findings of
fact, however, “unless the decision is fraudulent, or arbitrary, or capricious, or so grossly

erroneous as to necessarily imply bad faith, or if such decision is not supported by

substantial evidence.” Id.

       The board made factual findings that Thomas Creek’s letter dated February 11,

2004, (a) was not addressed to the contracting officer; (b) was clearly labeled as a

“Change Order (draft)”; and (c) contained a note to the engineering representative,

which stated in relevant part, “please let me know if these changes are acceptable.”

The board also found that the government responded to this letter by faxing a revised

draft change order to Thomas Creek on April 19, 2004. These sound factual findings

provide substantial evidence for the board’s conclusion that the February 11 letter was

not a claim under the contract, but rather merely part of the negotiations for the price of

the change order.     Additionally, the board found that Thomas Creek received the

government’s written notification of road acceptance on August 25, 2004, meaning that

the written claim dated December 30, 2004 was submitted well outside the contractually

permissible time period.




2006-1544                                    2
