Ownership rights in performance-based contracting: A case study of English law

Clients and contractors need to be aware of the project’s legal environment because the viability of a procurement strategy can be vitiated by legal rules. This is particularly true regarding Performance-Based Contracting (PBC) whose viability may be threatened by rules of property law: while the PBC concept does not require that the contractor transfers the ownership in the building materials used to the client, the rules of property law often lead to an automatic transfer of ownership. But does the legal environment really render PBC unfeasible? In particular, is PBC unfeasible because contractors lose their materials as assets? These questions need to be answered with respect to the applicable property law. As a case study, English property law has been chosen. Under English law, the rule which governs the automatic transfer of ownership is called quicquid plantatur solo, solo credit (whatever is fixed to the soil belongs to the soil). An analysis of this rule reveals that not all materials which are affixed to land become part of the land. This fate only occurs in relation to materials which have been affixed with the intention of permanently improving the land. Five fictitious PBC cases have been considered in terms of the legal status of the materials involved, and several subsequent legal questions have been addressed. The results suggest that English law does actually threaten the feasibility of PBC in some cases. However, it is also shown that the law provides means to circumvent the unwanted results which flow from the rules of property law. In particular, contractors who are interested in keeping their materials as assets can insist on agreeing a property right in the client’s land, i.e. a contractor’s lien. Therefore, the outcome is that English property law does not render the implementation of the PBC concept unfeasible. At a broader level, the results contribute to the theoretical framework of PBC as an increasingly used procurement strategy.

Innovation in facilities management: from trajectories to ownership

Purpose – Innovation in facilities management (FM) is a complex process as FM is a diverse discipline. This paper aims to use innovation trajectories to explore this complex process through the introduction of a technology innovation in two FM services of security and workspace management. It also aims to consider the discourse of individuals within their trajectory to understand their positions toward the innovation. Design/methodology/approach – A two-year case study was conducted and it was based in an in-house FM department that was part of a financial institution. The specific methods used for the paper were semi-structured interviews with key participants of the project. Critical discourse analysis was used to examine the data. Findings – Individuals who were involved in introducing the technology to the FM department were both internal and external to FM as innovation in FM does not happen in isolation to the organisation. Innovation trajectories were often intertwined or occurred simultaneously during the process of a project which sometimes resulted in conflict. Tensions within the discourse of ownership of the project were particularly apparent as this discourse had a power dimension in driving the project through to implementation. Research limitations/implications – The research is limited by being a single case study so it is not possible to generalise findings but the findings may have resonances with other organisations. Originality/value – The paper presents an original idea about how to understand innovation processes in FM services.

‘Inherited commitments’: do changes in ownership affect corporate social responsibility (CSR) at African gold mines?

This paper critically examines the issue of ‘inherited corporate social responsibility’ in the gold mining industry, focusing specifically on the case of sub-Saharan Africa, a region plagued with excessive corruption, rampant poverty and weak governance. Whilst there appears to be little incentive to proactively engage with communities and implement cutting-edge environmental policies in the region, mine managers argue otherwise, highlighting a number of reasons for embracing corporate social responsibility (CSR). After briefly reviewing the philosophical underpinnings of CSR, the paper provides an in-depth analysis of these arguments, in the process, underscoring how tenuous the case for CSR in the extractive industries, and gold mining more specifically, is in the context of sub-Saharan Africa. Following a change in ownership, new management faces few pressures to embrace CSR in its entirety and therefore, more often than not, finds itself in a position to implement programs and policies of its choice. More research is needed that further popularizes the issue of ‘inherited CSR’ in the gold mining sector and extractive industries more generally.