建设工程合同是契约自由原则贯彻的最大例外,其缔结必须采用招投标方式。这种方式虽然有利于维护社会公共利益,但该领域的现实表明,此种制度设计并非是万能的。它未能妥善解决私法自治与法律强制的难题,更未理顺公私法关系。 Construction contract is the principle of freedom of contract to implement the biggest exception, the conclusion must be used bidding approach. Although this approach is conducive to the maintenance of social public interests, the reality in this field shows that such system design is not a panacea. It failed to properly solve the problems of the autonomy of private law and the compulsion of law, but failed to rationalize the relationship between public law and private law.