جریان یا عدم جریان اصل «آزادی قراردادی» در خصوص انتخاب نوع قرارداد در قراردادهای دولتی

The legal system governing government contracts is fundamentally distinct from that regulating private contracts. One of the most significant principles in private contracts is the principle of contractual freedom, which grants parties the autonomy to choose the form and type of contract, as well as the freedom to select the counterparty, subject matter, and contractual terms. However, a key ambiguity arises in the context of government contracts: are state institutions bound by the principle of freedom of will when selecting the form of a contract?
Research indicates that in the realm of government contracts, the principle of freedom of will is replaced by the principle of restricted will. This means that government entities are not only limited in their choice of subject matter, counterparty, and contractual terms but are also constrained in selecting the type of contract. Unlike private parties, government authorities cannot freely choose from all available contractual frameworks. This restriction stems from the need to align government contracts with the principles of public law, such as the protection of public rights and assets, and the adherence to public interest and welfare.
Certain contractual forms are incompatible with these principles, as they may compromise transparency, accountability, or the equitable distribution of public resources. Consequently, the use of such contracts in the public sector is prohibited unless explicitly authorized by legislation. For instance, contracts involving significant public funds or resources often require specific legal frameworks to ensure compliance with public law standards.
In conclusion, while private contracts are characterized by the principle of contractual freedom, government contracts are governed by restrictions that prioritize public interest and legal compliance over the autonomy of the contracting parties.