When Being Busy Becomes a Business Risk
I have to admit, that I have not written an EM Friday for almost a month.
October simply disappeared on me. When I mentioned this to people in the industry, I quickly realised I was not the only one. Almost everyone seemed to have the same reaction: somehow October had arrived, become extremely busy, and disappeared before they had properly noticed.
Now we are already in November, and construction is entering that familiar end-of-year rush.
Everyone wants something finished before Christmas. Projects need to progress, payment claims need to be submitted, variations need to be agreed, final accounts need to be closed, tenders need to go out, budgets need to be confirmed, and decisions that have been sitting around for months suddenly become urgent.
Then, almost without warning, someone says, “See you next year.” And that is 2026.
What has been concerning me lately, however, is not simply how quickly the year is passing. It is what I am increasingly seeing happen underneath all that busy-ness:
Where businesses are carrying commercial problems they have not had time to properly deal with. And many of them do not realise how serious those problems may have become.
The issue you keep meaning to deal with
Recently, more of the matters coming across my desk have involved issues that did not start last week. They started months ago. Sometimes years ago.
A variation was completed but never properly resolved. A final account was left open because the parties could not quite agree. An invoice remained partially unpaid. There was an argument over scope, but the project moved on. A defect allegation appeared after completion. An extension of time was discussed but never formally dealt with. Someone assumed there would be an opportunity to sort everything out later.
Then everyone became busy.
The project team changed. People left the business. Emails became harder to find. Memories became less reliable. The other company changed ownership, stopped trading or disappeared completely. And suddenly something that once looked like a relatively manageable commercial issue has become a dispute.
I have recently been dealing with legacy matters where the relevant dates have become extremely important. In some cases, clients have come for advice when the potential limitation position is as close as within a week.
That is uncomfortable, because by that stage the question is no longer simply:
“Are we entitled to this money?”
It can become:
“Do we still have time to do anything about it?”
Those are two very different conversations.
Most commercial problems do not feel urgent when they begin
This is one of the difficult things about construction risk.
The things that can eventually cost a business significant amounts of money are often not the things shouting loudest for attention today.
If concrete does not arrive tomorrow morning, everyone knows immediately; If a subcontractor does not turn up, someone deals with it; If the programme slips, the issue appears in meetings.
But an unresolved variation can sit quietly in an email chain, becuase:
A questionable clause can sit quietly inside a 150-page contract;
A notice deadline can pass while everyone is focused on getting the work done;
A scope obligation can remain unnoticed until somebody asks who was responsible for it;
A payment dispute can be left because the commercial relationship is still good and nobody wants to “make a big deal out of it”.
These issues are easy to postpone precisely because the business can continue operating without resolving them today.
Until one day it cannot.
Perhaps you already have one
Think about your own business for a moment.
Is there a project where you know you are still owed money but nobody has really chased it?
Is there a variation where the work has already been completed, but you are still waiting for someone to formally approve it?
Is there a final account that has been sitting unresolved for months?
Is there an old client or contractor relationship where everyone quietly decided to leave the disagreement alone?
Is there a contract you signed because the project needed to start, but you still do not fully understand what risks were transferred to you?
Is there a design responsibility somewhere in your subcontract that you assumed belonged to somebody else?
Is there an instruction you followed on site without checking whether the person giving it actually had contractual authority?
Or perhaps there is something sitting in the back of your mind that you keep telling yourself you will look at when things become less busy.
If something immediately came to mind while reading those questions, that is probably worth looking at.
Not necessarily because there is already a dispute. But because those are exactly the issues that can become disputes when they are left unresolved.
A Busy Business Can Still Be Commercially Exposed
One of the lessons I keep seeing in my work is that activity and commercial health are not the same thing.
A company can have a full order book and still have a cash-flow problem. It can have record turnover while margins are quietly disappearing. It can win project after project while accumulating unpaid variations from the projects already underway. It can have excellent technical people delivering excellent work while accepting contractual obligations nobody has properly considered.
For SMEs particularly, that accumulated risk matters.
You may have $20,000 sitting in one unresolved variation, $40,000 in another project, an outstanding final account somewhere else and additional work being completed today without the correct contractual process being followed.
Individually, none of those issues may look capable of damaging the business. But collectively, they can represent a very significant amount of money. And that is before considering the management time, professional fees and disruption involved if they later become formal disputes.
Cash-flow problems often appear today because of decisions made months earlier.
Sometimes The Problem Starts Before The Project Does
This is why I have also been talking a lot recently about procurement and risk allocation.
We often analyse construction problems backwards: once something goes wrong, everyone wants to identify who caused it, whose contractual responsibility it was, whose insurance should respond and who ultimately carries the loss.
I have been looking closely at these questions recently through discussions around proportionate liability, design responsibility and insurance. But every time we have that conversation, I keep coming back to something much simpler.
Many of these problems could have been reduced much earlier. It can be at procurement stage, at your tender stage, during your contract negotiation, or before anyone started the work physcially on site.
And make sure you ask yourself:
Was the contractor selected because they were genuinely best placed to deliver the project, or simply because they submitted the lowest number?
Was the consultant's scope clear?
Was design responsibility properly allocated?
Did the party accepting the risk actually have the capability and insurance to carry it?
Were qualifications and exclusions incorporated into the final contract?
Did someone actually compare the tender against the contractual scope?
Did the contractor understand the time bars, notice provisions and payment mechanisms before signing?
Those questions rarely feel exciting when everybody wants to get a project started. But they can become extremely expensive questions later. Becuase sometimes the cheapest tender is only the cheapest on day one. And sometimes the most expensive clause in a contract is the one nobody had time to read.
Do You Actually Know What Your Contract Requires?
There are several questions I regularly ask clients which sound very basic.
They are so basic, yet I am often surprised by how difficult they are to answer.
Questions like:
How do you get paid?
You may know when you normally send an invoice, but do you know what your contract actually requires for a payment claim? Do you know the relevant dates, the payment schedule process and what happens when an amount is disputed?
What are your time bars?
If an event occurs today, when must you notify it? What information has to be included? Who must receive the notice? What are the consequences if the notice is late?
What is a variation under your contract?
Is an email enough? What about a revised drawing? A site instruction? A conversation with the client's project manager? What happens if you complete the work first and argue about the price afterwards?
What exactly is your scope?
Not simply what you remember pricing. What do the contract documents collectively require? Do the drawings say something different from the specification? Were your tender qualifications actually carried into the signed agreement? Is there a coordination responsibility hidden somewhere in the general requirements?
And increasingly importantly:
What design responsibility have you accepted?
I have seen contractors and subcontractors assume that because they did not consider themselves the “designer”, they were not carrying design risk. The contract may tell a different story.
The same applies to insurance. A contract can transfer risk to you much more easily than an insurance policy will agree to cover it.
That gap matters.
“We will sort it out later” is Not A Commercial Strategy
There is a very human reason these issues are left unresolved. Nobody wants every project to become adversarial. Good commercial management does not mean sending aggressive contractual notices every five minutes or treating every conversation as preparation for a dispute.
In fact, much of my work is about avoiding exactly that.
But there is a significant difference between maintaining a good relationship and failing to protect your position.
You can have a constructive relationship while documenting what has happened. You can work collaboratively while understanding your contract. You can solve a problem commercially while still knowing when your rights may expire. You can negotiate a variation without leaving it unresolved indefinitely.
Good contract management should support the relationship, not destroy it.
The problem is when businesses avoid dealing with issues because they are uncomfortable, complicated or simply not urgent enough. Time then makes the decision for them.
Before Christmas, Give Your Business One Day
So, before 2026 disappears completely, I would encourage construction business owners and commercial teams to do something very simple:
Block out one day.
Not to chase another tender. Not to answer emails. Not to prepare tomorrow's programme.
Look backwards, review your current projects and the projects you think are finished:
Look at the outstanding money.
Look at the unresolved variations.
Look at the final accounts.
Look at the contracts where you have never properly checked your scope.
Look at the disputes everyone has agreed to leave for now.
Look at the old invoices.
Look at the notices that may still need to be issued.
Look at the projects where there is a significant gap between what you believe happened and what is actually documented.
Then ask yourself:
If this became a dispute tomorrow, would I know where I stand?
If the answer is no, it does not automatically mean you have a major problem. But it probably means you need clarity. And clarity is usually much cheaper to obtain before a dispute than after one.
There is nothing wrong with being busy. Being busy can mean a strong reputation, loyal clients and a healthy pipeline.
But busy should never become a substitute for being commercially in control.
As we head into the final weeks of 2026, perhaps the most valuable question for your business is not:
“What can we win next?”
It may be:
“What are we already carrying that we have not dealt with?”
Because sometimes the problem that eventually costs the business the most is not the one that suddenly appears. It is the one that has been sitting there quietly for two years while everyone was too busy to look at it.
A large part of my work is helping construction businesses find that clarity before an issue becomes unnecessarily expensive, whether that means reviewing a contract before it is signed, understanding scope and risk allocation, working through payment and variation issues, assessing an existing commercial position, or helping resolve a dispute that has already developed.
If there is a contract, outstanding account, variation or old project sitting in the back of your mind while you read this, it may be worth looking at it now rather than carrying it into another year.
And that’s from me for this week. Have a great weekend everyone, and hopefully November slows down just a little for us all.
Best Wishes,
Emmolina
This article provides general information only and is not legal advice. Contractual time bars and statutory limitation periods depend on the particular contract, claim and circumstances.
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About EM
At EM, I work with construction businesses to help prevent commercial problems before they become disputes, protect their contractual and financial position, and resolve issues when things have already gone wrong.
This includes contract reviews, commercial and payment support, variation and scope issues, legacy disputes, and dispute resolution support from negotiation, mediation to adjudication and arbitration.
If there is something sitting in the background of your business that you are unsure about, you can find out more at emmolinamay.com. or simply reach out to me.
